2022 Ohio 766
Ohio2022Background
- Rover Pipeline sought federal authorization to construct an interstate natural-gas pipeline and submitted a Clean Water Act §401 certification request to Ohio on November 16, 2015.
- Ohio did not act on the §401 request within one year; later, Rover proceeded with construction and drilling-fluid discharges allegedly polluted Ohio waters.
- The Attorney General sued Rover and several contractors alleging seven counts (unpermitted discharges, stormwater-permit violations, water-quality and wetland violations, violations of Director’s orders and a hydrostatic permit, and activity without effective §401 certification).
- The trial court granted defendants’ Civ.R. 12(B) motions, concluding Ohio waived its §401 rights by failing to act within one year and dismissed the action for lack of jurisdiction; the court of appeals affirmed.
- The Ohio Supreme Court held the one-year clock begins on receipt of the application (not when deemed complete), found Ohio waived participation in the §401 certification process, but reversed dismissal and remanded to determine which alleged violations fall outside the contours of the §401 certification.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Rover/Contractors) | Held |
|---|---|---|---|
| When does the §401 one-year clock start? | Clock starts only when a completed application is submitted. | Clock starts when the application is submitted; states can reject incomplete apps. | Clock begins on receipt/submission of the application, not upon a later "complete" determination. |
| Scope of waiver from failing to act within one year | Waiver only bars state from objecting to discharges within the precise scope of the federal-certified discharge; state enforcement powers otherwise unaffected. | Waiver bars state from enforcing water-quality laws as to discharges that may result from the permitted activity; §401 covers "any discharge" that may result from the activity. | Waiver applies to the §401 certification for that federal application only; it does not automatically bar enforcement of state law for matters unrelated to the §401 application. |
| Whether dismissal under Civ.R. 12(B)(6) was proper given factual uncertainty | State argued dismissal was premature because factual development could show alleged violations fall outside §401 scope. | Defendants argued waiver foreclosed the claims and dismissal was appropriate. | Dismissal was improper; remand required so trial court can determine whether alleged violations lie outside the contours of the §401 certification. |
| Can the state still enforce separately obtained permits (hydrostatic permit)? | State contended waiver of §401 participation did not prevent enforcement of independent state permits. | Defendants argued waiver barred enforcement tied to the pipeline activity. | Majority remanded without a definitive ruling; concurrence would permit enforcement of the hydrostatic permit as independent and enforceable. |
Key Cases Cited
- Sierra Club v. State Water Control Bd., 898 F.3d 383 (4th Cir. 2018) (describing state options after receiving a §401 application)
- AES Sparrows Point LNG, L.L.C. v. Wilson, 589 F.3d 721 (4th Cir. 2009) (discussing whether the §401 clock starts on a “complete” application)
- New York State Dept. of Environmental Conservation v. Fed. Energy Regulatory Comm., 884 F.3d 450 (2d Cir. 2018) (holding the §401 one-year period begins on receipt of the application)
- PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology, 511 U.S. 700 (1994) (holding §401 authorizes states to impose conditions on the activity as a whole)
- California ex rel. State Water Resources Control Bd. v. Fed. Energy Regulatory Comm., 966 F.2d 1541 (9th Cir. 1992) (discussing FERC practice and timing of §401 processing)
- United States Dept. of Energy v. Ohio, 503 U.S. 607 (1992) (states may bring suits under federal environmental statutes, e.g., citizen-suit authority)