Author: Damien M. Schiff
Here's a sleeper case decided last month that has left me a little confused. In Ohio Valley Environmental Coalition v. Coal-Mac, Inc., an environmental group brought a citizen suit action under the Clean Water Act (as well as a federal mining law) against a number of coal companies. The group contended that the coal companies were violating the selenium limits placed on their effluent discharges in the Clean Water Act permits issued to them by the State of West Virginia.
Seems pretty normal, but here's the twist. The coal companies moved for summary judgment on the grounds that the enviros had failed to prove that the waters into which the selenium effluent was discharged were jurisdictional waters under the Act. The enviros responded that they didn't need to prove jurisdiction, because their claim was based entirely on whether the coal companies had violated the terms of the permits.
Amazingly, the district court agreed. Here's the relevant snippet from the court's decision:
The Court agrees with Plaintiffs' representation of the statutory requirements for a citizen suit under § 1365(f)(6). Essentially, the NPDES program was created to transform generally applicable provisions of the CWA into specific obligations of the individual pollutant discharger. If Plaintiffs were seeking to establish that Defendants were committing unpermitted discharges under § 1365(f)(1) or (2) in violation of effluent limitations established under § 1311 of the CWA, then they would be required to establish that the alleged discharges occurred in a navigable water of the United States. Plaintiffs, however, do not have to satisfy such a high threshold. Defendants, as holders of WV/NPDES permits, are obligated to comply with all requirements of the permits. To satisfy their burden, Plaintiffs need only prove that the specified selenium effluent limitations were in effect and that Defendants were in violation of their obligations with respect to those permits and those limits. Accordingly, this Court FINDS that as to the question of navigable waters, there is not a material fact in dispute in this action.
2011 U.S. Dist. LEXIS 35664, at *40-*41 (D. W. Va. Mar. 31, 2011) (my emphasis). In a sense, the court is right: the particular claim advanced by the enviros presupposes the existence of jurisdiction and looks only to whether the particular effluent limitations have been exceeded. But what the court has missed is that, even with this type of claim, jurisdiction is still necessary. Why? Because the claim is based on whether the permit in question is a valid permit. If the permit is not valid, then the effluent limitations it imposes do not have any force and their violation cannot be actionable. The CWA authorizes the issuance of permits, but only for "the discharge of any pollutant, or combination of pollutants." 33 USC s. 1342(a)(1). "Discharge of a pollutant" is in turn defined as "any addition of any pollutant to navigable waters from any point source." 33 USC 1362(12)(A). Thus, a valid Section 402 permit under the CWA must cover discharges to "navigable waters"; should it purport to cover discharges to any other type of waters, it would be a nullity because it would exceed the EPA's statutory authority.