In Law360's report on the first half of 2018's most noteworthy court matters regarding climate change, groundwater pollution, and energy, litigation attorney Rafe Petersen commented on circuit courts' rulings on the Clean Water Act (CWA). Thanks to a pair of similar U.S. appeals court decisions in the Ninth Circuit in February and the Fourth Circuit in April, the scope of potential CWA liability for energy companies has expanded. The courts concluded that pollution that reaches navigable U.S. waters via groundwater is subject to the law's permitting requirements—which, due to the complicated process, could be problematic for companies in the industry and their lawyers.
"This doesn't strike me as straightforward analysis, proving whether you need a permit," said Mr. Petersen. "How do you permit that? Are you looking to effluent limitations? It'll probably lead to really expensive and time-consuming permitting."
Luckily, the Environmental Protection Agency (EPA) has requested public comment on the issue and there are other ongoing groundwater liability cases that might help provide some clarity.
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