Environmental -- 2018

Upstate Forever v. Kinder Morgan   (4th Circuit)

"Conduit theory" of liability under the Clean Water Act

The NAM filed an amicus brief to oppose a lawsuit by environmental groups that seeks to expand the scope of liability under the Clean Water Act. The lawsuit involves a pipeline’s release of gasoline to dry land in South Carolina. After the release, some gasoline migrated through groundwater to a nearby stream protected by the Clean Water Act. The plaintiffs allege that the gasoline seepage to the stream is an unpermitted point source discharge under the Clean Water Act. This case has significant implications for manufacturers because the plaintiffs' theory would impose massive liability for any pollution (no matter how insignificant) that migrates from a pipeline, factory site, or other source into groundwater connected to nearby rivers, streams, or other waters.

A federal district court ruled against the plaintiffs, finding a lack of direct connection between the pipeline release and the stream. The Fourth Circuit Court of Appeals reversed, concluding that the groundwater constituted a direct hydrological connection between the pipeline rupture and the stream. The defendant asked the court to rehear the case. The NAM filed an amicus brief in support of the rehearing request. Our brief argues that the court’s decision conflicts with the Supreme Court and other appellate court decisions.

On May 30, 2018, the court denied the petitions for rehearing and rehearing en banc.

Related Documents:
NAM brief  (May 3, 2018)


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