9th Circ. Ruling Broadens Reach Of CWA Pollution Liability
Partner Brooks Smith is quoted in a Law360 byline titled, “9th Circ. Ruling Broadens Reach Of CWA Pollution Liability.” On Feb. 1 the Ninth Circuit ruled “wastewater injections whose pollution reaches navigable U.S. waters via groundwater are subject to Clean Water Act (“CWA”) permitting requirements.” The story cites a relevant Fourth Circuit case involving firm client Dominion Energy Inc. At issue is whether the utility’s coal ash discharges and another entity’s pipeline leak into groundwater violated the CWA. Smith is quoted, saying, ““I think in every case, you'll start to see notices to advise them of the ruling in this [Ninth Circuit] case and both sides offer their perspective on it.” He also spoke about whether other courts would adopt the Ninth Circuit’s “fairly traceable connection” rule establishing CWA liability for indirect discharges, saying, “I'd be surprised if other courts embrace that kind of judge-made standard, but that's what we need to watch for in those other cases. If this indirect connection is going to be embraced, what is the standard for establishing it? … I don't read this to suggest that any permitting program is going to change immediately, except in this rare situation where you have injection wells that are traceable to surrounding water bodies. I do think, that beyond those cases that are pending, folks would do right to consider the potential for pollutants to leave their sites by way of groundwater.”