Environmental -- 2018

Tennessee Clean Water Network v. Tennessee Valley Authority   (6th Circuit)

Conduit theory of liability for pollutants

The Tennessee Valley Authority (TVA) operates a coal-fired electric generation facility near Gallatin, Tennessee. The coal combustion produces coal ash, which TVA then stores within two on-site ponds. In 2015, environmental groups sued TVA, alleging that the coal ash seeps into groundwater with a hydrological connection to a nearby river. The plaintiffs allege that such seepage violates the Clean Water Act as an unpermitted discharge to a jurisdictional water. A district court ruled in favor of the plaintiffs based on a legal theory that if pollutants on land can reach a jurisdictional water through any underground conduit, then such pollutant is a "discharge" under the Clean Water Act, requiring a permit. This broad interpretation goes far beyond the scope and intent of the Clean Water Act, it duplicates other environmental statutes focused on land pollution, would be impossible to implement, and would impose incalculable liability risk on manufacturers and other regulated industries. The NAM’s amicus brief on behalf of TVA in the Sixth Circuit Court of Appeals argues against this overbroad theory of liability. On September 24, the Sixth Circuit ruled against the plaintiffs and in favor of manufacturers by rejecting the plaintiffs' claims and holding that the Clean Water Act does not apply to discharges to groundwater.

Related Documents:
NAM brief  (February 7, 2018)


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