Upstate Forever v. Kinder Morgan Energy Partners, L.P.
887 F.3d 637
4th Cir.2018Background
- In 2014 Kinder Morgan's underground gasoline pipeline ruptured in Anderson County, SC; hundreds of thousands of gallons spilled, the pipeline was repaired, and remediation recovered some but allegedly not all contamination.
- Plaintiffs Upstate Forever and Savannah Riverkeeper sued under the CWA citizen-suit provision, alleging Kinder Morgan discharged gasoline pollutants from a point source (the pipeline) that continue to be added to nearby "navigable waters" via groundwater seeps and short-distance migration (≈1000 feet or less).
- District court dismissed for lack of subject-matter jurisdiction and failure to state a claim, reasoning the pipeline was repaired (no ongoing point-source discharge) and CWA does not reach pollutants traveling through groundwater to surface waters.
- On appeal, Fourth Circuit majority held (vacated and remanded) that: (1) plaintiffs alleged an ongoing CWA violation because pollutants continue to be "added" to navigable waters even though the original pipe was repaired; and (2) an indirect discharge via groundwater can fall within the CWA if there is a direct hydrological connection traceable to a point source.
- Dissent argued (Floyd, J.) that CWA requires an ongoing addition "from" a point source and where the point source no longer actively discharges, the suit alleges only ongoing migration/nonpoint pollution and thus fails the Gwaltney ongoing-violation jurisdictional requirement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether courts have jurisdiction over a citizen suit when the point source has been repaired but pollutants continue to reach navigable waters via groundwater | A CWA "discharge" requires only an ongoing "addition" to navigable waters from a point source origin; repair of the point source does not defeat jurisdiction when pollutants continue to be added | Once the pipeline was repaired the point source stopped discharging; any remaining movement is migration/nonpoint and falls outside CWA citizen-suit jurisdiction | Court: jurisdiction exists if plaintiffs plausibly allege pollutants continue to be added to navigable waters; repair alone does not render violation wholly past (Gwaltney still requires an ongoing violation, which plaintiffs alleged) |
| Whether a discharge must be "direct" from a point source into navigable waters (i.e., cannot pass through groundwater) | The CWA defines "discharge" as any addition to navigable waters "from" a point source; "from" does not require direct conveyance—indirect routes (e.g., groundwater) are covered if traceable | Indirect groundwater migration is not a CWA discharge; allowing it would collapse the point/nonpoint distinction and exceed statutory scope | Court: indirect discharges may be covered; the discharge need not be direct from the point source, but must be sufficiently connected to navigable waters (adopting EPA's "direct hydrological connection" concept) |
| What showing is required when pollutant travels via groundwater | Plaintiffs need allege a direct hydrological connection (traceability, short distance, geology, flow) between groundwater and surface waters | Defendant emphasizes that groundwater pathway renders pollution nonpoint or untraceable | Court: plaintiffs must allege a direct hydrological connection; here allegation of pollutants reaching creeks ≤1000 feet away plausibly satisfies that standard at pleading stage |
| Pleading sufficiency for relief (injunctive/abatement) | Alleged ongoing additions and insufficient remediation support claim for injunctive relief to abate continuing pollution | Repair and remediation efforts weigh against finding an ongoing violation and entitlement to relief | Court: pleading was sufficient to state a CWA claim; case remanded for further proceedings on the merits |
Key Cases Cited
- Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49 (1987) (CWA citizen suits require allegation of ongoing rather than wholly past violations)
- Rapanos v. United States, 547 U.S. 715 (2006) (CWA's definition prohibits "addition of any pollutant to navigable waters"—language supports coverage of indirect additions)
- Miccosukee Tribe v. South Fla. Water Mgmt. Dist., 541 U.S. 95 (2004) (discussion of point-source conveyance and NPDES scheme)
- Riverside Bayview Homes, Inc. v. United States, 474 U.S. 121 (1985) (statutory definitions in CWA inform scope of "navigable waters")
- Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486 (2d Cir. 2005) (rejecting requirement that pollutants be channelized by a second point source before CWA applies)
- Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133 (10th Cir. 2005) (analysis of "ongoing migration" and traceability in groundwater-related claims)
- Goldfarb v. Mayor & City Council of Baltimore, 791 F.3d 500 (4th Cir. 2015) (under analogous RCRA provision, conduct causing violation need not be ongoing if violation itself is ongoing)
- Hawai'i Wildlife Fund v. County of Maui, 886 F.3d 737 (9th Cir. 2018) (groundwater-to-surface-water pathway can support CWA liability when fairly traceable/directly connected)