The U.S. Supreme Court issued its opinion in the consolidated cases U.S. Forest Service v. Cowpasture River Preservation Assn. (Case No. 18-1584) and Atlantic Coast Pipeline LLC v. Cowpasture River Preservation Assn. (Case No. 18-1587) addressing the U.S. Forest Service’s authority to issue authorization for the Atlantic Coast Pipeline to cross beneath the Appalachian Trail. Reversing the Fourth Circuit’s December 2018 decision, the Court held that the Forest Service has authority under the Mineral Leasing Act to grant a right-of-way on lands within the George Washington National Forest owned by the Forest Service over which the Trail crosses.

Continue Reading U.S. Supreme Court Reverses Fourth Circuit, Holds U.S. Forest Service Has Authority to Grant Right-of-Way Beneath Appalachian Trail

On April 20, the Supreme Court of the United States reversed the Montana Supreme Court’s decision in Atlantic Richfield Co. v. Christian, limiting restoration damages claims beyond Environmental Protection Agency-approved cleanups at Superfund sites, while affirming the right of private parties to seek other kinds of damages under state law. The majority decision, penned by Chief Justice John Roberts, turns on a plain-text interpretation of the definition of “potentially responsible parties” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Over a dissent by Justice Neil Gorsuch joined by Justice Clarence Thomas, the Court found that the affected landowners are potentially responsible parties and, therefore, restricted from challenging EPA-approved remediation plans.
Continue Reading Atlantic Richfield v. Christian Limits Property Owner Claims for Restoration Damages at Superfund Sites

Today the U.S. Supreme Court issued its long-awaited opinion in County of Maui v. Hawaii Wildlife Fund, addressing whether the Clean Water Act (CWA) requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater. The issue has historically been controversial and subject to much litigation.

In a 6-3 split, with Justice Breyer delivering the opinion of the Court, the Court rejected the Ninth Circuit’s “fairly traceable” test for determining when discharges from point sources to groundwater that reach surface waters are subject to Clean Water Act (CWA) permitting, instead laying out a narrower test focusing on whether a discharge to groundwater is the “functional equivalent of a direct discharge.”  The CWA defines point sources as any “discrete conveyance . . . from which pollutants are or may be discharged,” including pipes, channels, and wells. The Court found middle ground on the issue, citing to EPA’s long history of permitting pollution discharges from point sources that reached navigable waters only after traveling through groundwater and to several factors that should be considered on a case-by-case basis.
Continue Reading Supreme Court Issues New “Functional Equivalent” Test for Clean Water Act Permitting Coverage of Discharges to Groundwater

On Monday, January 27, the United States Supreme Court issued a notice granting both Florida and Georgia 45 days to respond to a special master recommendation recently issued by New Mexico-based federal Tenth Circuit Judge Paul Kelly, as well as time to address each other’s arguments in subsequent legal briefs.

The notice sets the stage for the justices to potentially hear the case later this spring or more likely, according to Court observers, in their next term that begins in October, 2020. The Court could also decide the 7-year-old case, Florida v. Georgia, without further oral arguments depending on the parties’ submissions. Florida sought to limit Georgia’s water usage in the Apalachicola-Chattahoochee-Flint river basin, where the Chattahoochee River transects Alabama and Georgia, the Flint River flows through rich South Georgia farmland, and the combined flows into the Apalachicola River ultimately reaches Apalachicola Bay and the Gulf of Mexico. The headwaters of the basin within Lake Lanier serve as the main source of drinking water for a majority of metro Atlanta and irrigates farms in southwest Georgia, providing an economic impact to Georgia estimated to be $13.8 billion.


Continue Reading Supreme Court Sets Stage for Next Water Wars Showdown