When Congress passed the Clean Water Act 50 years ago this month, it marked a major step forward in protecting the nation’s waters and the communities that rely on them. Over the ensuing decades, Sierra Club litigation has played a pivotal role in giving effect to the law’s protections and in resisting efforts to narrow or weaken critical safeguards.
Ensuring the Clean Water Act applies as broadly as Congress intended
The Clean Water Act functions by prohibiting all discharges of pollutants from “point sources” -- defined as “discrete conveyances” like pipes, ditches, or wells – into waters of the United States, unless those discharges are authorized by a permit. It was reasonably clear from the beginning how that approach applies to a factory or a power plant that seeks to discharge pollution directly from a pipe into a river. What about the many other ways polluted water reaches streams, rivers, and other bodies of water? Sierra Club lawsuits have repeatedly produced decisions applying the Clean Water Act to pollution from sources other than piped discharges.
In an early case interpreting the Act, Sierra Club v. Abston Const. Co., the US Court of Appeals for the Fifth Circuit agreed with the Sierra Club that a permit was required where a coal mine operator gathered pollution-generating materials into piles and then did nothing to prevent the resulting polluted runoff from reaching a nearby stream.1 More recently, the US Court of Appeals for the Tenth Circuit held in Sierra Club v. El Paso Gold Mines, Inc. that the owners of an abandoned gold mine were liable for discharges of heavy metals draining from their property through a more than two-and-a-half mile tunnel.2 Sierra Club suits also resulted in decisions holding that coal dropped into a water body from railcars3, and from a ship-loading conveyor belt, constituted pollution discharges requiring a permit.4
In one of the most significant environmental cases decided by the US Supreme Court in recent years, the Sierra Club and its co-plaintiffs secured a decision holding that discharges of pollution that travel through groundwater before reaching a jurisdictional water may also require a Clean Water Act permit. In that case, County of Maui v. Hawaii Wildlife Fund, et al., the Sierra Club and its co-plaintiffs had challenged the unpermitted discharge of sewage waste injected into groundwater on the island of Maui, which tracer dye tests determined reached the ocean, where it harmed coral reefs. The Supreme Court agreed that such discharges should be regulated under the Clean Water Act, holding that Act applies “to a discharge (from a point source) of pollutants that reach navigable waters after traveling through groundwater if that discharge is the functional equivalent of a direct discharge from the point source into navigable waters.”5
Giving full effect to the protections of the Clean Water Act
An environmental statute is only as strong as the enforceability of its provisions. Lofty goals and broad pronouncements do little good if polluters can’t actually be held accountable. Sierra Club lawsuits have established clear precedents ensuring that all aspects of the Clean Water Act’s protections are enforceable in court.
In Sierra Club v. Simkins Indus., Inc., the US Court of Appeals for the Fourth Circuit agreed with the Sierra Club that a permit holder violated the Act when it failed to sample and to file the required quarterly discharge monitoring reports for more than two years.6 This decision not only shored up a critical part of the Act’s reporting and enforcement scheme, it also broadened the scope of violations that could be addressed directly through a citizen-enforcement suit, particularly where government regulators refuse to act. Similarly, in Sierra Club, Lone Star Chapter v. Cedar Point Oil Co. Inc., the Sierra Club brought a citizen enforcement suit not to enforce the terms of a permit, but because an oil company was discharging its drilling wastewater pollution into Galveston Bay without a permit.7 The US Court of Appeals agreed that a permit was required, even though regulators had not yet established water quality standards for drilling wastewater, and further agreed that such a suit was an appropriate use of the Act’s citizen suit provisions. Id.
A decision from the Supreme Court in a Sierra Club lawsuit against a wastewater treatment facility not only stopped ongoing discharges of the harmful pollutant mercury, but highlighted the important role of enforcement suits brought by the Sierra Club and other environmental groups in securing compliance with the law. The Court held that citizen enforcement suits to secure penalties are available in some circumstances even if the polluter has entered into a compliance agreement with a friendly regulator, and even if the polluter has taken some steps to address its pollution.9
Leveraging the Clean Water Act to stop bad projects
In addition to enforcing the Clean Water Act against existing operations, the Sierra Club has also successfully brought litigation to stop bad projects from securing needed permits. For example, the Sierra Club successfully challenged reissuance of the Clean Water Act Section 404 Nationwide Permit 12, which was used to fast-track approval of oil and gas pipelines.9 That decision effectively halted construction of the highly controversial Keystone XL oil sands pipeline. The Sierra Club has similarly challenged Clean Water Act permits for destructive mountaintop removal coal mines in Appalachia.
Fighting to keep rules as strong as possible
While the Clean Water Act statute sets out the broad framework for how the regulatory regime functions, the rubber hits the road with the regulations promulgated by the Environmental Protection Agency (EPA). Sierra Club litigation has defended EPA’s rulemakings from industry attacks, and has pushed EPA to go further where necessary to achieve the purposes of the Act.
In Southwestern Electric Power Company, et al. v. EPA, the Sierra Club and partners challenged a weak EPA rule that set inadequate pollution limits for coal fired power plants.10 The US Court of Appeals for the Fifth Circuit agreed and sent the rule back to EPA to try again. Similarly, when the Trump administration issued a rule severely narrowing which waters fall under the Clean Water Act’s protections, the Sierra Club joined allies in challenging that rule.11 That rule has been remanded to the EPA, and the Biden administration plans to issue a replacement rule by the end of this year.
Looking ahead>
This list provides only a small sample of the many lawsuits the Sierra Club has brought under the Clean Water Act to protect our communities. As critical as it is for preventing harm to our waterways and communities, the Clean Water Act remains under constant threat. Industry groups and their backers in Washington want to limit the scope of the activities and waters subject to the Act to make it easier to destroy wetlands and dump pollution. The Sierra Club will continue to remain at the forefront of legal efforts to defend the Act and to give effect to its protections.
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Cases cited:
- Sierra Club v. Abston Const. Co., 620 F.2d 41, 43 (5th Cir. 1980).
- Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133, (10th Cir. 2005).
- Sierra Club v. BNSF Ry. Co, No. 1:13-CV-00272-LRS, 2014 WL 53309 (E.D. Wash. Jan. 2, 2014).
- Alaska Cmty. Action on Toxics et al. v. Aurora Energy Servs., LLC, 765 F.3d 1169, 1172 (9th Cir. 2014).
- County of Maui v. Hawaii Wildlife Fund, et al., 140 S. Ct. 1462, 1477 (2020).
- Sierra Club v. Simkins Indus., Inc., 847 F.2d 1109 (4th Cir. 1988).
- Sierra Club, Lone Star Chapter v. Cedar Point Oil Co. Inc., 73 F.3d 546 (5th Cir. 1996).
- Friends of the Earth, Inc., et al. v. Laidlaw Env't Servs. (TOC), Inc.,120 S. Ct. 693 (2000).
- N. Plains Res. Council v. U.S. Army Corps of Engineers, 454 F. Supp. 3d 985 (D. Mont.), amended, 460 F. Supp. 3d 1030 (D. Mont. 2020).
- Sw. Elec. Power Co. v. United States Env't Prot. Agency, 920 F.3d 999 (5th Cir. 2019).
- Puget Soundkeeper Alliance, et al. v. EPA, U.S. D. Ct. W. Dist. Wash., Case No. 2:20-cv-950.