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Kinder Morgan Energy Partners, L.P., et al. v. Upstate Forever, et al.

Paid petition · United States Court of Appeals for the Fourth Circuit, No. 17-1640 · judgment April 12, 2018

GVR'd · May 4, 2020

Pre-decision estimate: 2% cert probability

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

Questions presented

The Clean Water Act requires a permit for the “discharge of pollutants” into navigable waters, defined as “any addition of any pollutant to navigable waters from any point source.” 33 U.S.C. §1362(12). The Act leaves the States with primary responsibility to regulate all other forms of pollution, including the discharge of pollutants into soil and groundwater. Petitioners own a pipeline that ruptured and spilled gasoline into the soil and groundwater four years ago. Within days of discovering the leak, petitioners fully repaired the pipeline, and have worked with state authorities ever since to remediate the spill. Some gasoline that spilled into the soil and groundwater has been conveyed by groundwater into nearby navigable waters. In the context of a citizen suit filed two years after the pipe was repaired, the Fourth Circuit concluded that this seepage of gasoline through soil and groundwater constitutes an “ongoing violation” of the Act’s prohibition on unpermitted discharges of pollutants from a point source to navigable waters. The questions presented are:

Whether the Clean Water Act’s permitting requirement is confined to discharges from a point source to navigable waters, or whether it also applies to discharges into soil or groundwater whenever there is a “direct hydrological connection” between the groundwater and nearby navigable waters.
Whether an “ongoing violation” of the Clean Water Act exists for purposes of the Act’s citizen-suit provision when a point source has permanently ceased discharging pollutants, but some of the pollutants are still reaching navigable water through groundwater.

Counsel of record

For petitioner
Paul D. Clement
Clement & Murphy, PLLC

For respondent
Frank Sharp Holleman III
Southern Environmental Law Center

Case

Conference history
Distributed for 4 conferences

Amicus briefs
5 cert-stage

Proceedings

Jun 05 2020
JUDGMENT ISSUED.
May 04 2020
Petition GRANTED. Judgment VACATED and case REMANDED for further consideration in light of County of Maui v. Hawaii Wildlife Fund, 590 U. S. ___ (2020).
Apr 27 2020
DISTRIBUTED for Conference of 5/1/2020.
Feb 04 2019
DISTRIBUTED for Conference of 2/15/2019.
Jan 14 2019
DISTRIBUTED for Conference of 1/18/2019.
Jan 11 2019
Supplemental brief of respondents Upstate Forever, et al. filed.
Jan 11 2019
Supplemental brief of petitioners Kinder Morgan Energy Partners, L.P., et al. filed.
Jan 03 2019
Brief amicus curiae of United States filed. VIDED.
Dec 03 2018
The Solicitor General is invited to file a brief in this case expressing the views of the United States on or before 4 p.m., Friday, January 4, 2019.
Nov 07 2018
DISTRIBUTED for Conference of 11/30/2018.
Nov 06 2018
Reply of petitioners Kinder Morgan Energy Partners, L.P., et al. filed.
Oct 23 2018
Brief of respondents Upstate Forever, et al. in opposition filed.
Oct 04 2018
Brief amici curiae of Chamber of Commerce of the United States of America, et al. filed.
Oct 04 2018
Brief amici curiae of American Petroleum Institute, et al. filed.
Oct 04 2018
Brief amici curiae of State of West Virginia, et al. filed.
Oct 01 2018
Brief amicus curiae of Pacific Legal Foundation filed.
Sep 25 2018
Motion to extend the time to file a response is granted and the time is extended to and including November 5, 2018.
Sep 21 2018
Motion to extend the time to file a response from October 4, 2018 to November 5, 2018, submitted to The Clerk.
Sep 13 2018
Blanket Consent filed by Petitioners, Kinder Morgan Energy Partners, L.P., et al..
Aug 28 2018
Petition for a writ of certiorari filed. (Response due October 4, 2018)