US Supreme Court Asked to Consider if CWA Citizen Suits Can Address Migration through Groundwater

On successive days, two Petitions for Writ of Certiorari in Clean Water Act (CWA) citizen suit cases were filed with the United States Supreme Court, County of Maui v. Hawaii Wildlife Fund on August 27 and Kinder Morgan Energy Partners v. Upstate Forever on August 28.

Migration to Navigable Waters through Groundwater
While the cases have some differences, both petitioners seek reversal of lower court decisions allowing CWA citizen suits for the failure to have a CWA permit when pollutants migrated through groundwater to navigable surface water.  The petitioners argue that these recent decisions are inconsistent with other federal appellate court decisions that address discharges to and migration through groundwater.

If the CWA requires permits under these conditions, citizen suits could be used for enforcement when unpermitted discharges occur, such as when a spill or unintended release allows pollutants into groundwater, which then flow into surface water.

Court Accepts a Small Fraction of Petitions
The Court does not have to consider these cases. In a typical year, the court accepts only 100-150 petitions out of more than 7000 filed. Moreover, accepting a petition only means the Court will consider the case; successful petitioners often lose after full briefing and oral argument.

To accept a petition, four US Supreme Court Justices must vote to accept. The Court usually accepts petitions only for cases that have national significance, might harmonize conflicting decisions in the federal circuit courts, or have significant precedential value. Many environmental lawyers view these cases as meeting all three requirements; it remains to be seen if the Court will agree and accept one or both.

The Court does not have a deadline; however, most decisions to accept or reject come within one year.

Upcoming Continuing Education Event
Darlene Smith, a colleague and shareholder at Crain Caton & James, will present at the Texas Bar’s 7th Annual Course on Firearms Law:  What Every Texas Lawyer Needs to Know 2018.  Darlene, whose practice emphasizes probate, trust, and guardianship matters, will discuss the administration of estates that contain firearms.  The live presentation will be held in San Antonio, September 20-21 at the Norris Conference Center – Park North.  Attendees will receive 11.25 MCLE credits including 2 hours of ethics.

For more information, please go to http://www.texasbarcle.com/materials/Programs/3734/Brochure.pdf

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