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Tennessee Clean Water Network, et al. v. Tennessee Valley Authority

Paid petition · United States Court of Appeals for the Sixth Circuit, No. 17-6155 · judgment September 24, 2018


Dismissed · September 23, 2019
Pre-decision estimate: 1% cert probability

Before the decision, well below the 4.1% base rate, with no standout signals pointing toward a grant.

Question presented

Absent authorization by permit, the Clean Water Act prohibits the “discharge of a pollutant,” defined as “any addition of any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12)(A). In County of Maui v. Hawai’i Wildlife Fund, No. 18-260 (U.S. filed Aug. 27, 2018) (Maui), the Court granted certiorari to determine “whether the [Clean Water Act] requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater.” In this case, after a trial, the district court found that Respondent Tennessee Valley Authority is violating the Clean Water Act by adding toxic coal ash pollutants to the Cumberland River via a network of pipe-like conduits in the bedrock through which groundwater flows. The Sixth Circuit reversed, holding as a matter of law that the Clean Water Act never applies to any pollutant that travels from a point source through groundwater before polluting navigable waters. The question presented is: Whether a defendant’s addition of pollutants to a navigable water from a point source via groundwater conduits may ever violate the Clean Water Act’s prohibition on the unpermitted “discharge of a pollutant.”

Counsel of record

For petitioner
Frank Sharp Holleman III
Southern Environmental Law Center

For respondent
Noel John Francisco
Jones Day

Case

Conference history
Distributed for 1 conference

Proceedings

  1. Sep 23 2019
    Petition Dismissed - Rule 46.2.
  2. Sep 04 2019
    Motion to dismiss under Rule 46.2 filed by counsel for petitioners.
  3. Jul 03 2019
    DISTRIBUTED for Conference of 10/1/2019.
  4. Jun 14 2019
    Brief of respondent Tennessee Valley Authority in opposition filed.
  5. May 10 2019
    Motion to extend the time to file a response is granted and the time is extended to and including June 14, 2019.
  6. May 08 2019
    Motion to extend the time to file a response from May 15, 2019 to June 14, 2019, submitted to The Clerk.
  7. Apr 15 2019
    Petition for a writ of certiorari filed. (Response due May 15, 2019)