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Our Greenville and Spartanburg offices have closed while Upstate Forever staff work from home to help protect the health of each other, our families, and our communities. But while we are not together in the office, we remain together in our continued efforts to protect our region's critical lands, waters, and unique character.
The Supreme Court of the United States issued a landmark opinion this week in a Clean Water Act (CWA) lawsuit from Hawaii concerning the indirect pollution of federally protected waters via groundwater. Giving broader protections to our nation’s waterways, this ruling is closely tied to Upstate Forever’s and Savannah Riverkeeper’s CWA pollution suit against oil and gas pipeline operator Kinder Morgan for their 2014 spill of almost 400,000 gallons of diesel fuel in Anderson County.
In County of Maui v. Hawaii Wildlife Fund et al, the Supreme Court found in a 6-3 decision that a “functional equivalent” of a direct discharge (through groundwater, for example) is the same as a direct discharge from a pipe into surface water and merits CWA protection.
In December 2014, local residents discovered that Kinder Morgan’s Plantation Pipeline in Belton had ruptured, spilling at least 369,000 gallons of gasoline into the ground about 1,000 feet from Brown’s Creek. High quantities of petroleum were immediately detected in the creek. After state enforcement efforts failed to stop the flow of petroleum into the creek, the Southern Environmental Law Center (SELC) filed a lawsuit in December of 2016 on behalf of Upstate Forever and Savannah Riverkeeper.
The suit details violations of the federal Clean Water Act and was filed in United States District Court in Anderson. The suit asks that Kinder Morgan be required to stop discharging petroleum pollution into the waterway, that Kinder Morgan be required to remove gasoline from the site, that Kinder Morgan put in place more effective treatment of groundwater before it reaches the stream, and that Kinder Morgan be required to pay substantial fines for its continuing illegal pollution.
UF’s victory in the U.S. 4th Circuit was appealed by Kinder Morgan to the Supreme Court, where it was effectively bundled with two other cases with similar issues.
“The Supreme Court was looking at three similar Clean Water Act cases, including Upstate Forever v. Kinder Morgan, and they decided to hear the Maui case first to decide the cross-cutting issue of when the CWA applies to contamination of a navigable water that doesn’t have a direct pipe-to-water connection,” stated Shelley Robbins, Upstate Forever’s Energy and State Policy Director.
“This ruling settles this particular issue in all three cases, but we must still wait for the Court’s final disposition of the Upstate Forever case, hopefully within a couple of weeks,” said Robbins. “This ruling establishes that Kinder Morgan’s spill, which they failed to adequately clean up, is the functional equivalent of a direct discharge and therefore a violation of the Clean Water Act. But more importantly, the Supreme Court has made a statement that pollution of our waters will not be tolerated.”
Read more about Upstate Forever’s Kinder Morgan CWA lawsuit here.
Read the full Supreme Court of the United States ruling (Maui v. Hawaii Wildlife Fund) here.