UPSTATE FOREVER; SAVANNAH RIVERKEEPER v. KINDER MORGAN ENERGY PARTNERS, L.P.; PLANTATION PIPE LINE COMPANY, INC.
No. 17-1640
United States Court of Appeals for the Fourth Circuit
April 12, 2018
PUBLISHED
Plaintiffs - Appellants,
v.
Defendants - Appellees.
ANDERSON COUNTY, SOUTH CAROLINA; PIPELINE SAFETY TRUST,
Amici Supporting Appellant,
AMERICAN PETROLEUM INSTITUTE; ASSOCIATION OF OIL PIPE LINES; GPA MIDSTREAM ASSOCIATION; TEXAS PIPELINE ASSOCIATION; NATIONAL ASSOCIATION OF COUNTIES; NATIONAL LEAGUE OF CITIES; NATIONAL ASSOCIATION OF CLEAN WATER AGENCIES; AMERICAN FOREST AND PAPER ASSOCIATION; AMERICAN IRON AND STEEL INSTITUTE; EDISON ELECTRIC INSTITUTE; NATIONAL MINING ASSOCIATION; UTILITY WATER ACT GROUP; STATE OF WEST VIRGINIA; STATE OF SOUTH CAROLINA; STATE OF ALABAMA; STATE OF ARKANSAS; STATE OF INDIANA; STATE OF KANSAS; STATE OF LOUISIANA; STATE OF MISSOURI; STATE OF OKLAHOMA; STATE OF UTAH; STATE OF WISCONSIN; GOVERNOR PHIL BRYANT
Amici Supporting Appellee.
Appeal from the United States District Court for the District of South Carolina, at Anderson. Henry M. Herlong, Jr., Senior District Judge.
Argued: December 7, 2017 Decided: April 12, 2018
Before GREGORY, Chief Judge, and KEENAN and FLOYD, Circuit Judges.
Vacated and remanded by published opinion. Judge Keenan wrote the majority opinion, in which Chief Judge Gregory joined. Judge Floyd wrote a dissenting opinion.
ARGUED: Frank S. Holleman, III, SOUTHERN ENVIRONMENTAL LAW CENTER, Chapel Hill, North Carolina, for Appellants. James P. Cooney, III, WOMBLE BOND DICKINSON (US) LLP, Charlotte, North Carolina, for Appellees. ON BRIEF: Christopher K. DeScherer, SOUTHERN ENVIRONMENTAL LAW CENTER, Charleston, South Carolina, for Appellants. Richard E. Morton, Todd W. Billmire, Jackson R. Price, Charlotte, North Carolina; Clayton M. Custer, WOMBLE CARLYLE SANDRIDGE & RICE, LLP, Greenville, South Carolina, for Appellees. Catherine H. McElveen, RICHARDSON, PATRICK, WESTBROOK & BRICKMAN, LLC, Mount Pleasant, South Carolina, for Amicus Pipeline Safety Trust. Leon C. Harmon, Anderson, South Carolina, for Amicus Anderson County, South Carolina. Alan Wilson, Attorney General, Robert Cook, Solicitor General, J. Emory Smith, Jr., Deputy Solicitor General, OFFICE OF THE ATTORNEY GENERAL, Columbia, South Carolina, for Amicus State of South Carolina. Patrick Morrisey, Attorney General, Thomas M. Johnson, Jr., Deputy Solicitor General, John S. Gray, Deputy Attorney General, Charleston, West Virginia, for Amicus State of West Virginia. Steve Marshall, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF ALABAMA, Montgomery, Alabama, for Amicus State of Alabama. Leslie Rutledge, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF ARKANSAS, Little Rock, Arkansas, for Amicus State of Arkansas. Curtis T. Hill, Jr., Attorney General, OFFICE OF THE ATTORNEY GENERAL OF INDIANA, Indianapolis, Indiana, for Amicus State of
BARBARA MILANO KEENAN, Circuit Judge:
In late 2014, several hundred thousand gallons of gasoline spilled from a rupture in a pipeline owned by Plantation Pipe Line Company, Inc., a subsidiary of Kinder Morgan Energy Partners, LP (collectively, Kinder Morgan), near Belton, South Carolina. It is undisputed that the gasoline has seeped into nearby waterways, and the plaintiffs allege that the gasoline has continued to travel a distance of 1000 feet or less from the pipeline to those “navigable waters.”
Two plaintiff conservation groups brought a “citizen suit” under the Clean Water Act (the CWA, or the Act),
The district court held that it lacked subject matter jurisdiction under the CWA, because the pipeline has been repaired and the pollutants currently pass through ground water to reach navigable waters. We conclude that the district court erred in holding that it lacked jurisdiction, because citizens may bring suit under
I.
A.
In 1972, Congress enacted the CWA to eliminate the discharge of certain pollutants or “effluents” into the “navigable waters” of the United States. See S. Appalachian Mountain Stewards v. A & G Coal Corp., 758 F.3d 560, 563 (4th Cir. 2014); Piney Run Pres. Ass‘n v. Cty. Comm‘rs of Carroll Cty., 268 F.3d 255, 264-65 (4th Cir. 2001). The CWA‘s stated purpose is “to restore and maintain the chemical, physical, and biological integrity of the Nation‘s waters.”
The Act authorizes exceptions to this general prohibition in the form of permits issued in accordance with the National Pollutant Discharge Elimination System (NPDES), which allows limited discharges. See
The CWA authorizes both citizens and government agencies to enforce the Act‘s provisions. Citizen suits under the CWA have the “central purpose of permitting citizens to abate pollution when the government cannot or will not command compliance.” Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 62 (1987). The Act contains the following citizen suit provision:
[A]ny citizen may commence a civil action on his own behalf-
(1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of ... an effluent standard or limitation under this chapter . . . .
The Act sets forth a technical definition of the term “discharge of a pollutant,” which is defined expansively to include “any addition of any pollutant to navigable waters from any point source.”1
B.
The plaintiffs Upstate Forever and the Savannah Riverkeeper2 (collectively, the plaintiffs) allege that in late 2014, over 369,000 gallons of gasoline spilled from Kinder Morgan‘s underground pipeline, which extends over 1100 miles through parts of the eastern United States. In December 2014, citizens in Anderson County, South Carolina, discovered dead plants, a petroleum odor, and pools of gasoline in the vicinity of the pipeline. The plaintiffs allege that gasoline and gasoline toxins have seeped and continue to seep into ground water, wetlands, and waterways in Anderson County and the Savannah River watershed. They allege that although a reported 209,000 gallons were recovered by the end of 2015, no significant amount of contaminants has been removed since that time. Consequently, at the time that the plaintiffs filed their complaint, at least 160,000 gallons allegedly remained unrecovered. Kinder Morgan repaired the pipeline shortly after the initial spill.
When Kinder Morgan‘s pipeline broke six to eight feet underground, gasoline and related contaminants spilled out into soil and ground water. The plaintiffs allege that these contaminants are seeping into two nearby tributaries of the Savannah River, Browns Creek and Cupboard Creek, and their adjacent wetlands. The pipeline broke less than 1000 feet from Browns Creek and its adjacent wetland, and 400 feet from Cupboard Creek and a second wetland. Both waterways and the wetlands are downgradient from the spill site. The plaintiffs allege that gasoline pollutants from the pipeline are seeping into navigable waters as defined by the CWA, including the above two creeks in Anderson County, Broadway Lake, Lake
The plaintiffs allege that a “plume” of petroleum contaminants continues to migrate into these waterways years later through ground water and various natural formations at the spill site, including “seeps, flows, fissures, and channels.” Hazardous gasoline contaminants have been detected on several occasions at the spill site in ground water wells. Contaminants were also detected in Browns Creek as early as January 2015, and additional tests in Browns Creek have reported high levels of contaminants on several later dates in 2015 and in 2016.
Kinder Morgan has implemented certain remediation and recovery measures under the guidance of the South Carolina Department of Health and Environmental Control (DHEC). DHEC is the agency authorized to issue NPDES permits and oversee water quality in South Carolina. See Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 629 F.3d 387, 390 (4th Cir. 2011) [Friends of the Earth III];
The plaintiffs allege that Kinder Morgan has failed to comply fully with DHEC‘s abatement instructions. They claim that although DHEC instructed Kinder Morgan to test for pollution in March 2016, Kinder Morgan only began that additional testing after the plaintiffs made their own visit to the spill site in August 2016. The plaintiffs further allege that their testing conducted in August 2016 revealed that the levels of gasoline contaminants in Browns Creek actually were increasing almost two years after the spill. During their August 2016 visit to the area, oil sheens were visible on the surface of Browns Creek, and devices used to absorb the oil had not been maintained and were saturated with oil.
Kinder Morgan allegedly delayed by six months its submission to DHEC of the required site remediation plan and site assessment, and also refused to comply with another of DHEC‘s water sampling requests. Publicly available data on DHEC‘s website indicate that DHEC sampled surface waters at Browns Creek in February 2017 and found pollutants at three locations, each of which is being remediated. South Carolina Department of Health and Environmental Control, Surface Water Sampling Event, http://www.scdhec.gov/HomeAndEnvironment/Pollution/CleanUpPrograms/OngoingProjectsUpdates/PlantationPipeline/SurfaceWaterSamplingEvent/ (last visited Apr. 11, 2018).
The plaintiffs filed this suit in December 2016, alleging discharges of gasoline and gasoline pollutants without a permit, in violation of the CWA under
pollution, and seek damages, declaratory relief, and injunctive relief requiring that Kinder Morgan take further measures to control and abate the spill.
Kinder Morgan moved to dismiss the plaintiffs’ complaint under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, contending both that the district court lacked subject matter jurisdiction and that the plaintiffs had failed to state a claim for relief. Addressing first the sufficiency of the plaintiffs’ pleadings, the district court held that the plaintiffs had failed to state a claim because the pipeline had been repaired and no longer was discharging pollutants “directly” into navigable waters. The court also held that it lacked subject matter jurisdiction over the complaint, stating that the CWA did not encompass the movement of pollutants through ground water that is hydrologically connected to navigable waters. Accordingly, the court dismissed the plaintiffs’ complaint on both grounds. The plaintiffs timely noted this appeal.
II.
On appeal, the plaintiffs contend that the district court erred in determining that the continuing addition of pollutants to navigable waters is not an ongoing violation of the CWA because the pipeline has been repaired. According to the plaintiffs, a claim for a discharge of a pollutant, in violation of
In response, Kinder Morgan contends that the district court did not err because the violation ceased once the pipeline was repaired. Alternatively, Kinder Morgan asserts that if seepage is ongoing, the pollution is seeping from nonpoint sources, namely, from natural formations at the spill site. Kinder Morgan also argues that discharges into navigable waters from hydrologically connected ground water do not fall within the CWA‘s definition of a “discharge of a pollutant” in
A.
We review de novo the district court‘s dismissal of the complaint under
As a threshold matter, a court first must determine whether it has jurisdiction to entertain a claim. Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83, 88-89 (1998). A court‘s determination of subject matter jurisdiction addresses whether the court has the authority to entertain a particular kind of case, not whether a claim for relief is viable under a particular construction of a statute. See id. 89. Unless Congress has “clearly state[d] that [a statutory limitation] is jurisdictional . . . courts should treat the restriction as nonjurisdictional in character.” Sebelius v. Auburn Reg‘l Med. Ctr., 568 U.S. 145, 153 (2013) (citations and internal quotation marks omitted).
In the present case, the primary issue we consider is whether an indirect discharge of a pollutant through ground water, which has a direct hydrological connection to navigable waters, can support a theory of liability under the CWA. Because our answer to this question largely depends on our construction of the statutory term “discharge of a pollutant,” the question ordinarily would not be jurisdictional in nature.5 However, because courts have “jurisdiction” over CWA citizen suits only if the complaint alleges an ongoing violation, Gwaltney, 484 U.S. at 64, we must address the question of an ongoing violation before proceeding further in this case. Accordingly, we first address whether the plaintiffs have alleged an ongoing violation and, if so, whether they sufficiently have alleged a nexus between the source of the pollution and navigable waters to state a claim for discharge of a pollutant under the CWA. See Steel Co., 523 U.S. at 88-90.
B.
The CWA authorizes citizens to seek injunctive relief only to abate a “continuous or intermittent” violation. Gwaltney, 484 U.S. at 64; Friends of the Earth III, 629 F.3d at 402 (“We have instructed that a citizen plaintiff can prove an ongoing violation . . . by proving violations that continue on or after the date the complaint is filed.” (citation omitted)). Conversely, when a violation of the CWA is “wholly past,” the federal courts do not have jurisdiction to entertain a citizen suit, even if the past discharge violated the CWA. Gwaltney, 484 U.S. at 64. As we already have noted, the CWA‘s citizen suit provision is intended primarily to allow citizens “to abate pollution when the government cannot or will not command compliance.” Id. at 62; cf. Middlesex Cty. Sewerage Auth. v. Nat‘l Sea Clammers Ass‘n, 453 U.S. 1, 17 n.27 (1981) (“[P]rivate enforcement suits were intended [often] to be limited to [ ] injunctive relief.“). The citizen suit provision thus enables citizens to seek abatement of polluting discharges to further the CWA‘s central purpose, namely, “to restore and maintain the chemical, physical, and biological integrity of the Nation‘s waters.”
In Gwaltney, the Supreme Court emphasized that the CWA, like other environmental statutes, authorizes “prospective relief” that only can be attained while a violation is ongoing and susceptible to remediation. Id. at 57; see also, e.g.,
The plaintiffs in Goldfarb alleged that the City of Baltimore had stored hazardous chemicals, which had leaked from the point of storage and had continued to migrate through the soil in violation of the RCRA‘s permitting standards. Id. at 512. In response to the City‘s contention that any RCRA violations were wholly past under the rationale of Gwaltney, we observed that “although a defendant‘s conduct that is causing a violation may have ceased in the past . . . what is relevant is that the violation is continuous or ongoing.” See id. at 511-13 (citing S. Rd. Assocs. v. IBM Corp., 216 F.3d 251, 255 (2d Cir. 2000)). Accordingly, we held that the plaintiffs had alleged an ongoing violation of the RCRA. Id.
Our analysis in Goldfarb regarding an ongoing violation is equally applicable here.6 Nothing in the language of the CWA suggests that citizens are barred from seeking injunctive relief after a polluter has repaired the initial cause of the pollution. When interpreting a statute, we attend first to the statute‘s plain language. United States v. Ide, 624 F.3d 666, 668 (4th Cir. 2010). Like the RCRA, the CWA‘s plain language requires only that the citizen allege that the polluter “be in violation of” an “effluent standard or limitation” under the Act.
512-13. As noted above, an “effluent limitation” of the CWA includes any unpermitted “discharge of a pollutant.”
Kinder Morgan‘s gasoline pipeline unambiguously qualifies as a point source.7
The CWA‘s term “discharge of a pollutant” is a statutory term of art precisely defined in the CWA. Cf. Riverside Bayview Homes, Inc., 474 U.S. at 133 (noting that statutory definition of “navigable waters” in CWA makes ordinary meaning of those words less important). The definition does not place temporal conditions on the discharge of a pollutant from a point source. Nor does the definition limit discharges under the Act to additions of pollutants to navigable waters from a point source that continues actively to release such pollutants. Instead, the precondition for alleging a cognizable discharge of a pollutant is only that the plaintiff allege an ongoing addition to navigable waters originating from a point source.
The CWA is a strict liability statute. Friends of the Earth II, 204 F.3d at 151. As noted above, Congress set forth in the Act its intention that “the discharge of pollutants into the navigable waters be eliminated,”
As the court observed, the complaint alleged only that the discharged oil was “leaking into ground water” and “grasslands,” not into navigable waters. Id. Likewise, the Second Circuit held that continuing decomposition of “lead shot” in the Long Island Sound is not a “present violation” of the CWA. Conn. Coastal Fishermen‘s Ass‘n v. Remington Arms Co., 989 F.2d 1305, 1312-13 (2d Cir. 1993). That holding pertained to whether the continuing effects of pollutants already “deposited” into a navigable water constituted a continuing violation. Id. at 1313. In contrast, the plaintiffs allege here that pollutants continue to be added to navigable waters, a violation encompassed within the Act‘s statutory definition. Accordingly, we conclude that the plaintiffs have alleged an ongoing violation of
C.
i.
We turn to consider the question of first impression in this Circuit whether a discharge of a pollutant that moves through ground water before reaching navigable waters may constitute a discharge of a pollutant, within the meaning of the CWA. Initially, we observe that a discharge of a pollutant under the Act need not be a discharge “directly” to a navigable water from a point source. In Rapanos v. United States, the
Supreme Court considered the kinds of connected waters covered by the CWA. See id. at 732-38. Justice Scalia, writing for a plurality of four Justices, concluded that certain wetlands and intermittent streams did not themselves fall within the meaning of navigable waters under the CWA.10 See id. at 739. However, when analyzing
The plain language of the CWA requires only that a discharge come “from” a “point source.” See
discharge of a pollutant does not require a discharge directly to navigable waters, Rapanos, 547 U.S. at 743, neither does the Act require a discharge directly from a point source,11 see
To hold otherwise effectively would require that any discharge of a pollutant cognizable under the CWA be seamlessly channeled by point sources until the moment the pollutant enters navigable waters. The Second Circuit rejected such an interpretation of the CWA, and we agree with that court‘s reasoning. In Waterkeeper Alliance, Inc. v. EPA, the Second Circuit held that if courts required both the cause of the pollution and any intervening land to qualify as point sources, such an interpretation would, in practice, “impose a requirement not contemplated by the Act: that pollutants be channelized not once but twice before the EPA can regulate them.” 399 F.3d 486, 510-11 (2d Cir. 2005); see also Concerned Area Residents for Env‘t v. Southview Farm, 34 F.3d 114, 119 (2d Cir. 1994) (holding that liquid manure that passed from tankers through intervening fields to nearby waters constituted a discharge from a point source). The Ninth Circuit likewise rejected the theory that the CWA creates liability for discharges “only . . . where the point source itself directly feeds into the navigable water—e.g., via a pipe or a ditch.” Hawai‘i Wildlife Fund, 2018 WL 1569313, at *7.
ii.
Although we conclude that an indirect discharge may fall within the scope of the CWA, such discharges must be sufficiently connected to navigable waters to be covered under the Act. As the Ninth Circuit recently held, a discharge that passes from a point source through ground water to navigable waters may support a claim under the CWA. Hawai‘i Wildlife Fund, 2018 WL 1569313, at *8. However, a discharge through ground water does not always support liability under the Act. Id. Instead, the connection between a point source and navigable waters must be clear.
The EPA has developed the term “direct hydrological connection” to identify for purposes of the CWA whether there is a clear connection between the discharge of a pollutant and navigable waters when the pollutant travels through ground water. The EPA consistently has taken the position that the Act applies to discharges “from a point source via ground water that has a direct hydrologic connection to surface water.” National Pollutant Discharge Elimination System Permit Regulation and Effluent Limitations Guidelines and Standards for Concentrated Animal Feeding Operations, 66 Fed. Reg. 2960, 3015 (proposed Jan. 12, 2001) [CAFOs Standards]; see also Amendments to the Water Quality Standards Regulation That Pertain to Standards on Indian Reservations, 56 Fed. Reg. 64,876, 64,892 (Dec. 12, 1991) (“[T]he Act requires NPDES permits for discharges to groundwater where there is a direct hydrological connection between groundwaters and surface waters.“). The assessment of the directness of a hydrological connection is a “factual inquiry,” in which “time and distance” are relevant, as well as factors such as “geology, flow, and slope.” CAFOs Standards, 66 Fed. Reg. at 3017. This interpretation by the EPA of its statutory authority “warrants respectful consideration,” especially in the context of a “complex and highly technical regulatory program.” Wis. Dep‘t of Health & Family Servs. v. Blumer, 534 U.S. 473, 497 (2002) (citing Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994)); see also Riverside Bayview Homes, Inc., 474 U.S. at 131.
In light of the above considerations, we hold that a plaintiff must allege a direct hydrological connection between ground water and navigable waters in order to state a claim under the CWA for a discharge of a pollutant that passes through ground water.12 This determination necessarily is fact-specific. In the present case, the plaintiffs have alleged that pollutants are seeping into navigable
Also as a matter of undisputed fact, the ruptured pipeline caused the pollution at issue here. Kinder Morgan does not assert that the pollutants found in the creeks and wetlands have an independent or contributing cause. And this is not a case in which pollutants are diluted while passing through a labyrinth of underground “tunnel geology,” El Paso Gold Mines, 421 F.3d at 1150, or are otherwise diverted from their natural course, see Sierra Club v. Abston Constr. Co., 620 F.2d 41, 45 (5th Cir. 1980) (holding that natural flow of “[g]ravity . . . resulting in a discharge into a navigable body of water, may be part of a point source discharge if the [polluter] at least initially collected or channeled the water and other materials“).
Additionally, the plaintiffs have alleged a traceable discharge from the ruptured pipeline. The traceability of a pollutant in measurable quantities is an important factor in the determination whether a particular discharge is covered by the CWA. See Hawai‘i Wildlife Fund, 2018 WL 1569313, at *8 (holding that claim for indirect discharge must show that pollution is “fairly traceable” to the point source); El Paso Gold Mines, 421 F.3d at 1140 n.4 (noting that pollution that is “not traceable to a single, identifiable source or conveyance” is nonpoint source pollution). And Kinder Morgan does not dispute that pollutants originating from the gasoline pipeline already have been detected in the waters of Anderson County.
As we have noted, the CWA‘s stated purpose is “to restore . . . the chemical, physical, and biological integrity of the Nation‘s waters,”
We find no merit in Kinder Morgan‘s concern that our holding will result in unintended coverage under the CWA of any discharge of a pollutant into ground water. We do not hold that the CWA covers discharges to ground water itself. Instead, we hold only that an alleged discharge of pollutants, reaching navigable waters located 1000 feet or less from the point source by means of ground water with a direct hydrological connection to such navigable waters, falls within the scope of the CWA.13 Accordingly, the plain
III.
For these reasons, we vacate the district court‘s decision and remand the case for further proceedings consistent with this opinion.
VACATED AND REMANDED
FLOYD, Circuit Judge, dissenting:
Based on allegations that pollutants are being added into navigable waters, the majority concludes that the Appellants have adequately alleged a cognizable and ongoing Clean Water Act (“CWA“) violation. Maj. Op. at 19. While this conclusion may seem intuitive at first glance, close examination of the text, history, and structure of the CWA reveals that not every addition of pollution amounts to a CWA violation—much less an ongoing CWA violation. Congress precisely defined a CWA violation as the addition of pollutants from a point source, and for there to be an ongoing CWA violation, there must be an ongoing addition of pollutants from a point source into navigable waters. See
I.
A.
The parties’ pleadings and briefs reveal the following facts. In late 2014, residents of Belton, South Carolina, discovered that Kinder Morgan‘s pipeline released a large amount of gasoline and contaminated the nearby ground (“spill site“). Kinder Morgan repaired the pipeline within a few days of discovering the leak and began remediation efforts that are ongoing to this day under the supervision of the South Carolina Department of Health and Environmental Control (DHEC). Kinder Morgan has recovered over 209,000 gallons of gasoline, but over 160,000 gallons of gasoline remain unrecovered at the spill site. Kinder Morgan‘s repaired pipeline is not currently leaking any additional gasoline. Nevertheless, as the gasoline from the spill site gets washed off by ground water or seeps through the ground from the spill site, gasoline is being introduced to navigable waters. In December 2016, the environmental groups Upstate Forever and Savannah Riverkeeper (collectively, “Appellants“) initiated a citizen suit against Kinder Morgan, alleging an ongoing CWA violation. After full briefing on the matter, on April 20, 2017, the district court dismissed the Appellants’ complaint for lack of subject matter jurisdiction and failure to state a claim.
B.
We review a district court‘s order dismissing a complaint for lack of subject matter jurisdiction and for failure to state a claim de novo. Goldfarb v. Mayor & City Council of Balt., 791 F.3d 500, 505 (4th Cir. 2015).
II.
Congress enacted the CWA,
First, Congress concentrated the federal regulatory effort on curtailing point source pollution—that is, pollution from “discernible, confined and discrete conveyance[s],”
While the CWA includes other important features, it bears explaining these three central features in detail, as they are critical to this appeal.
A.
In drafting the CWA, Congress focused the federal regulatory effort on reducing point source pollution by making the existence of, and the addition of pollutants from, a point source a sine qua non element of a CWA violation. The text and structure of the CWA unambiguously lead to this conclusion.
At the outset, it is important to note that “Congress consciously distinguished between
Unlike point source pollution, nonpoint source pollution “arises from many dispersed activities over large areas, and is not traceable to any single discrete source.” League of Wilderness Defs./Blue Mts. Biodiversity Project v. Forsgren, 309 F.3d 1181, 1183 (9th Cir. 2002). “Congress had classified nonpoint source pollution as runoff caused primarily by rainfall around activities that employ or create pollutants.” Cordiano v. Metacon Gun Club, Inc., 575 F.3d 199, 220 (2d Cir. 2009) (internal quotation marks omitted). Indeed, a common example of nonpoint source pollution is rain washing pollution off the highway and carrying it along “by runoff in a polluted soup[] [to] creeks, rivers, bays, and the ocean.” Forsgren, 309 F.3d at 1183. The EPA guidance on nonpoint source pollution similarly confirms that “[i]n practical terms, nonpoint source pollution does not result from a discharge at a specific, single location (such as a single pipe) but generally results from land runoff, precipitation, atmospheric deposition, or percolation.” Cordiano, 575 F.3d at 220 (quoting EPA Office of Water, Nonpoint Source Guidance 3 (1987)).
That Congress intended to target point source pollution, rather than nonpoint source pollution, is evident from the text of the CWA, which makes the existence of a point source a required element of a CWA violation.
In summarizing the requirements under these two statutory provisions,
Furthermore, the general structure of the CWA confirms that Congress sought to focus on point source pollution. “A central provision of the [CWA] is its requirement that individuals, corporations, and governments secure [NPDES] permits before discharging pollution from any point source into the navigable waters . . . .” Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597, 602 (2013). Under the CWA, point source pollution is regulated by the EPA through the NPDES permitting program, see
A careful review of the CWA‘s text and structure reveals that Congress sought to target point source pollution and thus included point source as an indispensable element of a CWA violation.1
Congress chose the NPDES permitting program as a central means of controlling point source pollution. “[I]ndividuals, corporations, and governments [must] secure [NPDES] permit[s] before discharging pollution from any point source into the navigable waters of the United States.” Decker, 568 U.S. at 602.
Under the CWA, the state and federal governments act as partners in administering the NPDES program and issuing the permits. Arkansas v. Oklahoma, 503 U.S. 91, 101 (1992). An NPDES permit can be issued by either the EPA or a state agency. The EPA “initially administers the NPDES permitting system for each State, but a State may apply for a transfer of permitting authority to state officials.” Nat‘l Ass‘n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 650 (2007). “If authority is transferred, then state officials—not the federal EPA—have the primary responsibility for reviewing and approving NPDES discharge permits, albeit with continuing EPA oversight.” Id.
An NPDES permit “place[s] limits on the type and quantity of pollutants that can be released into the Nation‘s waters,” Miccosukee Tribe, 541 U.S. at 102, and “defines, and facilitates compliance with, and enforcement of, . . . a discharger‘s obligations under the [CWA],” California ex rel. State Water Res. Control Bd., 426 U.S. at 205. The EPA promulgates the “effluent limitations” that “restrict the quantities, rates, and concentrations of specified substances which are discharged.” Arkansas, 503 U.S. at 101; see also
NPDES permitting is, however, not only ill-equipped to address, but also inapplicable to, nonpoint source pollution. Unlike a point source, nonpoint source pollution “arises from many dispersed activities over large areas, and is not traceable to any single discrete source.” Forsgren, 309 F.3d at 1184. And for that reason, nonpoint source pollution “is very difficult to regulate through individual permits.” Id. More specifically, it would be difficult to mandate compliance with inspection, reporting, and monitoring requirements given that nonpoint source pollution cannot be traced to discrete sources. Thus, sensibly, the CWA does not attempt to regulate nonpoint source pollution through the NPDES permitting. See El Paso, 421 F.3d at 1140 n.4 (observing that “[g]roundwater seepage that travels through fractured rock would be nonpoint source pollution, which is not subject to NPDES permitting“); Forsgren, 309 F.3d at 1183 (stating that
In sum, Congress chose the NPDES permitting scheme as the primary means of controlling point source pollution, which is the focus of the CWA regulatory scheme.
C.
Congress also instituted a comprehensive enforcement scheme to ensure compliance with the CWA, in which the state and federal governments bear the primary responsibility for enforcement, but private citizens have limited supplementary enforcement authority.
Under the CWA, “the primary responsibility for enforcement rests with the state and federal governments . . . .” The Piney Run, 523 F.3d at 456 (quoting Sierra Club v. Hamilton Cty. Bd. of Cty. Comm‘rs, 504 F.3d 634, 637 (6th Cir. 2007)).
The CWA also includes a citizen suit provision,
One important jurisdictional limit on a citizen‘s ability to enforce the CWA is that she may only bring a suit for an ongoing CWA violation but not for a past violation. Id. at 57. The text of the CWA
Therefore, although Congress envisioned private citizens playing an important role in the CWA enforcement by providing supplementary enforcement, it also placed jurisdictional limitations on citizen suits by requiring the existence of an ongoing violation.
III.
The threshold jurisdictional question in this appeal is whether there is a cognizable and ongoing CWA violation such that the Appellants’ citizen suit may proceed. See Gwaltney, 484 U.S. at 57. In my view, the Appellants have failed to show that the CWA violation is ongoing, because there is no ongoing discharge of pollutants from a point source. Cf. Am. Canoe Ass‘n, 326 F.3d at 521. Instead, the facts presented to us in the record demonstrate that there is an ongoing groundwater migration from the spill site, which does not amount to a CWA violation and cannot support a citizen suit. See Or. Nat. Desert Ass‘n, 550 F.3d at 785 (noting that Congress chose not to include generalized runoff within the definition of “discharge“).
A.
In my view, there is no ongoing CWA violation. The Appellants cannot show that there is an ongoing discharge of pollutants from a point source, because the only point source at issue—the pipeline—is not currently leaking or releasing any pollutants.
A CWA violation is defined as an unpermitted “discharge of any pollutant by any person.”
Thus, for there to be an ongoing CWA violation, a point source must currently be involved in the discharging activity by adding, conveying, transporting, or introducing pollutants to navigable waters. See El Paso Gold Mines, 421 F.3d at 1140 (summarizing
Kinder Morgan‘s pipeline is not presently leaking or releasing gasoline; therefore, the only relevant point source is not currently discharging—adding, conveying, transporting, or introducing—pollutants to navigable waters. Cf. Miccosukee Tribe, 541 U.S. at 105; Catskill Mts., 273 F.3d at 491. Thus, in my view, there is no ongoing violation under the meaning of the CWA. This should therefore end the Appellants’ citizen suit, which requires an ongoing CWA violation. See
Because the pipeline is not actively and continuously discharging pollutants, there is no ongoing violation, but only a wholly past violation, under the meaning of the CWA.
B.
In my view, this is an ongoing migration case, which does not amount to an ongoing CWA violation and cannot support a citizen suit. Kinder Morgan is a past violator—that is, it indirectly added pollutants to navigable waters from its point source when its pipeline leaked and released a large amount of gasoline that reached navigable waters. Although Kinder Morgan‘s pipeline itself is not currently leaking, the effects of Kinder Morgan‘s past violation continue. The spill site continues to introduce gasoline into navigable waters as gasoline migrates through the ground or as ground water washes off and carries gasoline to navigable waters. This Court has not addressed whether a past discharge with lasting effects—through an ongoing migration of pollutants through groundwater movement—can support a citizen suit. See Ohio Valley Envtl. Coal., Inc. v. Hernshaw Partners, LLC, 984 F. Supp. 2d 589, 597 (S.D. W. Va. 2013) (observing there is no Fourth Circuit precedent directly on point).
Given similar circumstances, however, several federal courts have concluded that ongoing migration of pollutants from a past discharge does not amount to an ongoing discharge necessary to support a citizen suit under the CWA. Conn. Coastal Fishermen‘s Ass‘n v. Remington Arms Co., 989 F.2d 1305, 1312-13 (2d Cir. 1993)
Like those courts, I would conclude that the lasting effects of Kinder Morgan‘s past violation cannot give rise to a citizen suit under the CWA for two reasons. First, ongoing migration does not involve a point source, thus negating an essential element of a CWA violation. Second, ongoing migration is, by definition, nonpoint source pollution, which is outside of the CWA‘s reach.
i.
Ongoing migration from a site contaminated by a past discharge does not involve a point source and is thus not a cognizable violation under the CWA. See
The ongoing migration cases [in which the courts dismissed the citizen suits] . . . all involve an identifiable discharge from a point source that occurred in the past, whether it be a spill, Wilson, 989 F. Supp. at 1163, the accidental leakage at a chemical plant, Hamker, 756 F.2d at 394, the discharge of lead shot and clay targets at a firing range, Remington Arms, 989 F.2d at 1309, or dumping of waste rock at a mine, LAC Minerals, 892 F. Supp. at 1337. At the time of suit, the discharging activity from a point source in all of these cases had ceased; all that remained was the migration, decomposition, or diffusion of the pollutants into a waterway.
El Paso, 421 F.3d at 1140. Likewise, at the time of the Appellants’ suit, the discharging activity from Kinder Morgan‘s point source (i.e., the gasoline leak) had ceased, and all that remained was migration of gasoline from the spill site to navigable waters. “Migration of residual contamination resulting from previous releases is not an ongoing discharge within the meaning of the [CWA],” LAC Minerals, 892 F. Supp. at 1354, because the point source itself is not conveying or introducing a pollutant into navigable waters, see Miccosukee Tribe, 541 U.S. at 105; Gorsuch, 693 F.2d at 175.
The majority attempts to distinguish one of these migration cases from the Fifth Circuit, Hamker, 756 F.2d at 397, by observing that Hamker only dealt with an alleged discharge into groundwater and not navigable waters. See Maj. Op. at 19. But the court‘s analysis in Hamker did not
ii.
Moreover, migration of pollutants from the spill site amounts to an ongoing nonpoint source pollution. As discussed above, Congress chose not to regulate nonpoint source pollution through the NPDES permitting program. See, e.g., El Paso, 421 F.3d at 1140 n.4; Forsgren, 309 F.3d at 1183; Gorsuch, 693 F.2d at 166; Appalachian Power, 545 F.2d at 1373-74. Nonpoint source pollution is commonly caused by the natural movements of rainfall or groundwater that wash off and carry pollutants from a large, diffuse area to navigable waters. Codiano, 575 F.3d at 220 (“[N]onpoint source pollution . . . generally results from land runoff, precipitation, atmospheric deposition, or percolation.“); El Paso, 421 F.3d at 1140 n.4 (“Groundwater seepage that travels through fractured rock would be nonpoint source pollution, which is not subject to NPDES permitting.“); Sierra Club v. Abston Constr. Co., Inc., 620 F.2d 41, 44 (5th Cir. 1980) (“The focus of [the CWA] is on the ‘discernible, confined and discrete’ conveyance of the pollutant, which would exclude natural rainfall drainage over a broad area.“); Tr. for Alaska v. EPA, 749 F.2d 549, 558 (9th Cir. 1984) (“Congress had classified nonpoint source pollution as runoff caused primarily by rainfall around activities that employ or create pollutants.“). Nonpoint source pollution—caused by movements of rain or groundwater—“is very difficult to regulate through individual [NPDES] permits” because it “arises from many dispersed activities over large areas, and is not traceable to any single discrete source.” Forsgren, 309 F.3d at 1184.
Here, the Appellants have alleged ongoing migration from the spill site, which does not amount to a CWA violation. The Appellants have alleged that the groundwater flow from the spill site is introducing pollutants to navigable waters. Appendix (“App.“) 8. Indeed, the Appellants’ CWA case is built on the novel theory that the introduction of pollutants through the movement of hydrologically connected groundwater amounted to a CWA violation. Appellant Br. 26. As the record plainly shows, groundwater is carrying gasoline from the spill site, which spans in three different directions from the pipeline and covers a vast area. App. 99, 173. This kind of migration of pollutants through the natural movements of groundwater amounts to nonpoint source pollution. El Paso, 421 F.3d at 1140 n.4; see also Forsgren, 309 F.3d at 1184. While there is no doubt this kind of nonpoint source pollution affects the quality navigable waters, Congress deliberately
In sum, I would conclude that ongoing migration of pollutants from a past discharge does not amount to an ongoing CWA violation.
C.
I do not take lightly the allegations of the severe environmental harm caused by Kinder Morgan. The Appellants have alleged facts suggesting a serious environmental disaster that cannot be easily overlooked as a mere peccadillo on the part of Kinder Morgan‘s operation and management. The allegations indicate that a full restoration will take many years and require tremendous resources.
The severity of the situation alone, however, does not and cannot give rise to a citizen suit under the CWA. “Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). In creating a citizen suit provision under the CWA, Congress deliberately limited federal courts’ jurisdiction such that they may entertain citizen suits only for allegations of ongoing CWA violations.
Barring the Appellants’ citizen suit would not necessarily mean that Kinder Morgan will evade accountability. Under the CWA, the primary responsibility for enforcement rests with the state and federal governments. The Piney Run, 523 F.3d at 456. In fact, the State of South Carolina, through DHEC, has stepped in and is actively overseeing the remediation efforts. DHEC has directed Kinder Morgan to investigate the impact of the spill and implement corrective action plans. After a series of back and forth revisions between DHEC and Kinder Morgan, on March 1, 2017, DHEC approved the “Startup Plan for Surface Water Protection Measures” that was meant to implement additional remedial measures in the spill site. App. 351. Thus, even without a CWA citizen suit, the State of South Carolina is protecting and remediating the
Moreover, if a CWA citizen suit fails for lack of subject matter jurisdiction, other state and federal laws may provide actionable claims against Kinder Morgan. South Carolina state law may provide a more encompassing response. As the amici States have pointed out, Brief of the Amici States 22-23, South Carolina law provides for the state to recover monetarily from polluters for violations that includes even nonpoint source pollution, see
The Appellants have raised serious allegations but, in my view, the CWA citizen suit is not the proper mechanism to seek redress. Therefore, the district court lacked subject matter jurisdiction and the complaint failed to state a claim upon which relief can be granted.
IV.
For the reasons above, I would affirm the district court‘s dismissal of the Appellants’ complaint. I respectfully dissent.
Notes
S. Rep. No. 92-414 (1972), as reprinted in 1972 U.S.C.C.A.N. 3668, 3744. The narrowing of Congress‘s regulatory focus resulted “in part because nonpoint sources were far more numerous and more technologically difficult to regulate,” whereas “point sources tended to be more notorious and more easily targeted.” Or. Nat. Def. Ass‘n, 550 F.3d at 780; see also S. Rep. No. 92-414, at 39 (“[M]any nonpoint sources of pollution are beyond present technology of control“). Whatever the reason, the legislative history confirms that Congress intended to focus on point source pollution in enacting the CWA.In order to further clarify the scope of the regulatory procedures in the Act [sic] the Committee has added a definition of point source to distinguish between control requirements where there are specific confined conveyances, such as pipes, and control requirements which are imposed to control runoff. The control of pollutants from runoff is applied pursuant to Section 209 and the authority resides in the State or local agency.