Amicus Curiae (Friend of the Court) Briefs

Clean Air Act

Ozone Pollution

United States Court of Appeals for the District of Columbia Circuit
State of New York, et. al. v. United States Environmental Protection Agency, et. al.
Case No.: 17-1273

The federal Clean Air Act (CAA) requires EPA to establish health-based air quality standards, known as National Ambient Air Quality Standards (NAAQS), for certain harmful pollutants. One of these pollutants is ground-level ozone, which has a variety of negative effects on human health and the environment. In 1990, Congress created the Ozone Transport Region to address widespread ozone issues in the northeastern United States. Section 176A of the CAA allows EPA to expand a transport region to include additional states when EPA believes that air pollutants from those states contribute to a violation of the NAAQS in the transport region.

Eight states in the northeast Ozone Transport Region, including New York, Maryland, Delaware, and Pennsylvania, petitioned EPA to expand the Transport Region to include nine upwind states that are transporting air pollutants, including nitrogen oxides, into the Region and contributing to violations of the ozone NAAQS. In November 2017, EPA denied the 176A petition and declined to expand the Transport Region without providing an alternative solution. The eight petitioning states asked the D.C. Circuit Court of Appeals to review EPA's decision.

In May 2018, CBF and Sierra Club filed an amicus curiae brief with the D.C. Circuit in support of the state Petitioners, arguing that EPA acted arbitrarily and capriciously in denying the states' 176A petition. Specifically, EPA ignored important information about human health and environmental impacts and misconstrued its obligations under the CAA. On April 23, 2019, the D.C. Circuit denied the Petition of the eight states and held that EPA’s denial complied with the Clean Air Act and was a reasonable exercise of the agency’s discretion.

Fifty percent of the nitrogen deposited to the Chesapeake Bay watershed via air pollution comes from areas outside of the Chesapeake Bay watershed, including all or part of eight (of the nine) states the 176A petition asks to be added to the Transport Region. Downwind states are unable to reduce air pollution transported from upwind states and are unfairly burdened by the resulting ozone pollution and associated health and environmental costs EPA's decision to deny the 176A petition ignores the significant benefits to human health and water quality that would be achieved by reducing the interstate transport of ozone and nitrogen oxides

The New Source Review Provisions

Supreme Court of the United States
Environmental Defense, et. al. v. Duke Energy Corporation
Case No.: 05-848

In April 2, 2007, the United States Supreme Court issued an opinion in Environmental Defense v. Duke Energy, and clarified the Clean Air Act's New Source Review provisions concerning the requirements for permitting coal-fired electric utilities that emit thousands of tons of pollutants into our air and ultimately into the Chesapeake Bay. CBF, while not a party to the case, submitted an amicus curiae brief supporting the position of the environmental petitioners and, ultimately, the U. S. Environmental Protection Agency (EPA). CBF provided detailed information to the court on how air pollution harms the Bay.

The New Source Review provisions require operators of large stationary sources of air pollution, such as coal-fired power plants, to get a permit and install the best available control technologies when they make a "modification" or structural change in the plant that increases pollution. In the Duke case, and several other similar cases brought by the U. S. Department of Justice on behalf of EPA, one of the pollutants sought to be controlled was nitrogen oxides, a pollutant harmful to the Bay. The court was asked to decide how to determine if a modernization project increased the amount of pollution emitted, and ultimately if the modifications triggered the requirement to install pollution controls. Duke Energy argued that the proper test was an hourly rate of emissions. The environmental petitioners argued that the proper test was an annual rate.

The Supreme Court overturned the ruling by the lower appeals court that construed EPA's regulations to require a permit only when a modernization project increases the maximum hourly rate at which a source is capable of emitting. The Court ruled that EPA may also consider an increase in the annual rate of pollution.

This was the first time in decades that the Supreme Court took a case at the behest of an environmental advocacy organization despite opposition by the federal government. This case serves as an example that an advocacy group's decision to intervene to support strict governmental enforcement of environmental regulation can have a significant impact on pollution control. It is for this reason that CBF is committed to and will continue to take on and join these types of cases where it suits our overall mission.

Clean Water Act

Supreme Court of the United States
Sackett v. Environmental Protection Agency, et al.
Case No.: 21-454

CBF joined 113 environmental and community non-profit organizations, that rely on the Clean Water Act to help protect public health and the environment, to submit an amicus brief in support of the Environmental Protection Agency in the Sackett v. EPA United States Supreme Court case. In this case, the Sackett family challenged a Ninth Circuit Court of Appeals opinion finding that wetlands are waters of the United States and protected by the Clean Water Act. The Sacketts argued that only navigable waters and wetlands immediately adjacent to them should be protected by the Clean Water Act. Our brief urged the Supreme Court to uphold the Ninth Circuit’s ruling and reject the “two step” test for defining jurisdictional waters put forward by the petitioners. The two-step test would only protect waters deemed navigable and wetlands that physically border them, and no more. In May 2023, the U.S. Supreme Court issued an opinion in favor of the Sacketts and removed federal protection for a majority of wetlands and other waterways across the county. The ruling significantly impacts the interpretation of the Waters of the U.S. Definition in the Clean Water Act and negatively affects downstream water quality. See CBF’s concluded case Chesapeake Bay Foundation, et al. v. EPA for additional details.

Related Blog Posts: Wetlands Are Waters, Too
Four Things Bay-Savers Should Know about the Supreme Court’s Wetlands Ruling

Maryland MS4 Permit Challenges

Court of Appeals of Maryland
Maryland Department of the Environment v. County Commissioners of Carroll County
Case No.: September Term, 2018 No. 5
Frederick County, Maryland v. Maryland Department of the Environment
Case No.: September Term, 2018 No. 7

In May 2018, CBF filed amicus briefs in two separate cases in the Maryland Court of Appeals to offer broader perspective on the importance of regulating stormwater throughout the watershed. One case on appeal from the Circuit Court for Carroll County which held that the Maryland Department of the Environment (MDE) exceeded its authority in applying the permit coverage to the entire county. The other case on appeal from the Circuit Court for Frederick County upheld important provisions of Frederick County's stormwater discharge permit after it was challenged by the county.

Municipal Separate Storm Sewer Systems (MS4s) discharge polluted runoff from buildings, parking lots, and roads. This pollution is regulated pursuant to the Clean Water Act, and permits for its discharge are issued by MDE to counties and municipalities for their MS4s. Stormwater runoff remains a growing source of pollution not only in Maryland, but throughout the Chesapeake Bay watershed. Stormwater pollution contributes 28 percent of Maryland's total nitrogen load, 28 percent of the total phosphorous load and 32 percent of the total sediment load to the Chesapeake Bay. MS4 permits remain the only avenue the State and municipalities have to reduce pollution entering the Bay from stormwater runoff. When polluted runoff enters our waterways it can cause high bacteria levels leading to algal blooms and dissolved oxygen levels.

CBF has previously challenged the MS4 permits issued by MDE for having insufficient limits and unenforceable terms and are therefore allowing pollutants to impact local waterways. However, CBF does not want the permits weakened and believes it is lawful for MDE to include terms in an MS4 permit that are applied county-wide in accordance with the Clean Water Act.

Maryland Court of Special Appeals

Maryland Department of the Environment v. Anacostia Riverkeeper
222 Md. App. 153, 112 A.3d 979 (2015)

CBF filed an amicus brief in August 2014 with the Maryland Court of Special Appeals in support of the decision of the Circuit Court for Montgomery County which held that the permit issued to Montgomery County for stormwater discharges from its Municipal Separate Storm Sewer System (“MS4”) must be revised in order to comply with Maryland law, the Clean Water Act, and federal regulations. The Court of Special Appeals affirmed the decision of the Circuit Court because the permit did not afford an appropriate opportunity for public notice and comment and did not include critical details explaining the County's obligations to manage its stormwater discharges.

In its decision, the Court of Special Appeals quoted directly from CBF's amicus curiae brief regarding the importance of MS4 permits in the context of the Chesapeake Clean Water Blueprint, stating, “'Maryland's ability to comply with the Bay TMDL pollution reduction requirements relies heavily on reducing pollutants from urban stormwater,' and 'the ability to track and confirm progress' on that reduction 'through public participation, monitoring, and setting and using interim benchmarks is of the utmost importance.'” Anacostia Riverkeeper, 222 Md. App. at 162, 112 A.3d at 984.

The Maryland Department of Environment appealed this decision to the Maryland Court of Appeals in July 2015. Arguments were held on this and a related MS4 permit for Anne Arundel County on appeal by the Chesapeake Bay Foundation. In March of 2016, the Court of Appeals reversed the decision of the Court of Special Appeals and affirmed MDE’s decision to issue the Montgomery County permit. CBF continues to monitor MS4 permits, and restoration plans throughout Maryland.

Maryland National Pollutant Discharge Elimination System Permit Challenge

Maryland Court of Special Appeals
Potomac Riverkeeper, et al. v. Maryland Department of the Environment
Case No.: September Term, 2015 No.: 01028

CBF filed an amicus brief in the Maryland Court of Special Appeals on February 19, 2016 in support of the Potomac Riverkeeper. The Riverkeeper appealed the decision of the Circuit Court for Allegheny County affirming the Maryland Department of the Environment's (MDE) decision to issue a National Pollutant Discharge Elimination System ("NPDES") permit to Upper Potomac River Commission wastewater treatment plant ("UPRC") in Luke, Maryland. In the brief, CBF argued that the Circuit Court erred by not remanding the NPDES permit to MDE for consideration of Potomac Riverkeeper's objections to the modified effluent limitation contained in UPRC's final NPDES permit. CBF's brief focused on the importance of the mandatory public participation requirements in the NPDES permitting process and how the public could not comment on permit terms which were not reasonably ascertainable during the comment period, or arose after the end of the public comment period. On July 26, 2018, the Court affirmed the Judgment of the Circuit Court.

Wetlands Litigation

United States Court of Appeals for the Fourth Circuit
Precon Development Corp., Inc., v. United States Army Corps of Engineers
Case No.: 09-2239

Precon Development Corporation (“Precon’) planned for a 658-acre tract unit development known as Edinburgh located in Chesapeake, Virginia. In 2006, Precon decided to proceed with the development of 10 residential building lots in Edinburgh and filed a request with the U.S. Army Corps of Engineers for a jurisdictional determination and an application for a permit, if necessary, to destroy wetlands located within the site. The Corps' determined that, under the Clean Water Act, the wetlands were waters of the United States under their jurisdiction and denied a permit to impact the wetlands.

Precon appealed the determinations to the U.S. District Court for the Eastern District of Virginia. The district court granted summary judgment to the Corps on September 4, 2009 and upheld both its jurisdictional determination and its permit denial. An appeal to the U.S. Court of Appeals for the Fourth Circuit followed where Precon challenged only the Corps' jurisdictional determination. Because of our long history of involvement with the Clean Water Act and the protection of our Nation's waters, including those in Virginia, CBF chose to get involved in this case and and filed an amicus curiae brief to the Fourth Circuit in support of the Corps' decision.

In January of 2011 the U.S. Court of Appeals for the Fourth Circuit vacated the district court's decision and remanded the case back to the Corps for reconsideration of its determinations. The 4th Circuit found that the Army Corps adequately established a nexus between the wetlands and the river, but the administrative record was inadequate to support the Corps' conclusion that it had jurisdiction over Precon's wetlands. On remand, the Corps expanded its administrative record and once again denied Precon’s permit to impact the wetlands. On appeal, the 4th Circuit ruled that the Army Corps had satisfied its obligations and upheld the lower court’s decision of the Army Corp’s jurisdiction over the disputed wetlands and its permit denial.

Waters of the United States (WOTUS)

Supreme Court of the United States
John A. Rapanos, et. al. v. United States Army Corps of Engineers, et. al.
Case No.: 04-1034

In January 2006, CBF filed an amicus curiae brief with the United States Supreme Court supporting the U. S. Army Corps of Engineers' jurisdiction over non-tidal wetlands and headwater streams in two cases: U.S. v. Carabell and U.S. v. Rapanos. The court's decision had the potential to significantly affect federal Clean Water Act jurisdiction over permitting construction in wetlands. CBF's brief focused on how the loss of such jurisdiction could severely impact the Chesapeake Bay and its tributaries.

On June 19, 2006, the court issued a split decision with some justices voting to severely limit Corps jurisdiction and others voting for continued federal jurisdiction over permitting. The court described several different standards for how Corps jurisdiction should be determined but no clear standard was provided.

Ultimately, the cases were sent back to the trial court for development of additional facts. Given the split in reasoning, the Supreme Court's decision will likely create confusion and add further burden to the Corps and states that implement the Clean Water Act. In an attempt to explain the decision and its potential impact on Bay resources, former CBF Vice President of Litigation Jon Mueller submitted an article to the Bureau of National Affairs that was published in March 2007.

In June of 2007, the U.S. Environmental Protection Agency and the Corps announced agency guidance to ensure that all actions being conducted under the Clean Water Act are consistent with the Rapanos decision. CBF Staff Attorney Amy McDonnell submitted comments on behalf of CBF objecting to the guidance and urging that the Act's definition of "waters of the United States" be amended to resolve the confusion caused by the Supreme Court decision.

Climate Change

Supreme Court of the United States
B.P, et al. v. Mayor and City Council of Baltimore
Case No.: 19-1189

The Mayor and the City Council of Baltimore filed a Complaint against BP and other major oil and gas companies in the Circuit Court for Baltimore City in July 2018. The City of Baltimore is seeking to recover damages under state law for harms it has sustained, and will continue to sustain, because of the energy companies’ decades-long campaigns to promote fossil-fuel products while wrongfully concealing the destructive impacts these products have caused on public infrastructure and global warming.

Prior to this case proceeding, the oil and gas companies removed the case to federal court claiming that this action is governed by federal common law rather than state law. The U.S. District Court for the District of Maryland denied these claims and granted Baltimore’s request to remand the case back to state court.  On appeal, the Fourth Circuit affirmed the lower court’s ruling that this case was properly remanded to state court.  BP filed a petition for writ of certiorari asking the U.S. Supreme Court to review the decision of the Fourth Circuit.  The Supreme Court granted certiorari to address a question about the scope of appellate review when a case is remanded to state court. CBF joined Natural Resources Defense Council and filed an Amicus Brief in Support of the City of Baltimore. In the brief, CBF discussed the climate related issues facing the City of Baltimore, including increases in flooding, precipitation, extreme heat, and ground level ozone. These impacts often effect minority communities in the city. On May 17th, the U.S. Supreme court issued a 7-1 Opinion siding with the oil and gas firms on the procedural issues of appellate review and the case is being sent back to the Fourth circuit. In her dissent, Justice Sotomayer noted that "Baltimore has already waited three years to begin litigation on the merits, is consigned to waiting once more." CBF will continue to monitor the proceeding in this case.

Land Use and Zoning

Maryland Court of Special Appeals
Anne Arundel County v. Stephen Bell
442 Md. 539, 113 A.3d 639 (2015)

CBF filed an amicus brief in August of 2014 with the Maryland Court of Appeals in support of a decision rendered by the Court of Special Appeals regarding citizens' rights to challenge a legislative zoning decision of the Anne Arundel County Council. The Court of Special Appeals held that the citizens had standing to challenge the legislative rezoning of parcels near their property because their properties were close enough to the rezoned parcels to be “almost prima facie aggrieved,” and in addition to this proximity, they alleged specific facts to demonstrate how their personal or property rights had been specially and adversely affected by the rezoning in a way different from those of the general public.

The Court of Appeals reversed the intermediate appellate court's judgment, holding that taxpayer standing, not property owner standing, applies to judicial challenges to comprehensive zoning legislation. In applying this standard, the Court of Appeals further held that the citizens did not properly allege facts to support their standing as taxpayers; namely, both (1) an action by a public official or municipal corporation that is illegal or beyond his or her (or its) authority, and (2) that the action may reasonably result in an economic loss to the taxpayer or an increase in taxes.

This decision has a profound impact on Maryland citizens' ability to challenge purely legislative rezoning actions by their local government. It forecloses judicial review of those decisions by all members of a community save those who can meet the very high bar of taxpayer standing.

Maryland Court of Appeals
David Trial, et. al. v. Terrapin Run, LLC, et. al.
Case No.: September Term 2007 – Case No. 44

In October 2007, CBF filed an amicus curiae brief with the Maryland Court of Appeals in support of Petitioners appeal of a circuit court decision allowing a special exception for a 4,300 unit development on 935 acres in Allegany County neighboring Green Ridge State Forest. CBF took exception to the lower court's view that a special exception does not have to conform to the county's Comprehensive Plan. Prior to Petitioner’s appeal, the Circuit Court for Allegany County held such plans were merely advisory. CBF believes that such a decision could wreak havoc on the development planning process in Maryland and render Comprehensive Plans—developed after years of study and input by citizens and commercial interests—obsolete. A national planning group and the Maryland Department of Planning submitted similar briefs challenging the decision. On March 11, 2008, the Court of Appeals issued its opinion agreeing with the views of the lower courts.

Maryland Critical Area

Maryland Court of Appeals
Sara Caldes, et. al. v. Elm Street Development, et. al.
Case No.: September Term 2008 – Case No. 12

In February of 2007, the Circuit Court for Anne Arundel County upheld a decision of the County Board of Appeals granting several Critical Area variances to a developer proposing to build on land located on steep slopes along Saltworks Creek, a tributary to the Severn River. CBF recently constructed an oyster reef at the mouth of the Creek and development of the adjacent land carries with it an obvious risk to the health of the creek and its inhabitants. The property at stake is also within the Resource Conservation Area of the Critical Area. Development in Resource Conservation Areas is subject to the most stringent restrictions. Maryland law dictates that these areas must be conserved and protected.

Local residents concerned that the law was not being properly interpreted in this case and that the environment would suffer harm, appealed the circuit court's decision to the Maryland Court of Special Appeals. CBF filed an amicus curiae brief in support of the appeal, arguing that the Circuit Court failed to satisfy legally required burdens in its decision and failed to properly evaluate the area where the proposed development would be built. In January 2008, the Court of Special Appeals upheld the Board's decision to grant the variances. The citizens appealed, this time to the Maryland Court of Appeals, and CBF again filed an amicus curiae brief arguing that if upheld, the Court of Special Appeals’ decision will harm the administration of Maryland’s Critical Area Program and the Chesapeake by will suffer negative impacts. The Court of Appeals Affirmed the Circuit’s Court’s decision upholding the variances issued to the developer.

Maryland Court of Appeals
Robert Foley, Jr., et. al. v. K. Hovnanian At Kent Island, LLC
Case No.: September Term 2007 – Case No. 35

In July 2007, CBF filed an amicus curiae brief with the Maryland Court of Appeals in support of the Petitioners, Robert Foley and the Queen Anne’s Conservation Association’s, appeal of a Court of Special Appeals decision overturning an injunction issued by the Circuit Court for Queen Anne’s County regarding the amendment of the county’s critical area maps. The Court of Special Appeals held that the maps did not have to be accurate and did not have to correctly describe the shoreline, location of wetlands, or extent of hydric (wet) soils. On August 21, 2009, the Court of Appeals affirmed the lower court's decision.

Maryland—Intervention and Standing (Citizen Participation)

Maryland Court of Appeals
Environmental Integrity Project, et. al. v Mirant MD Ash Management, et. al.
Case No.: September Term 2011 – Case No. 70

On April 2, 2008, the Environmental Integrity Project ("EIP"), the Potomac Riverkeeper, and five individual Maryland citizens sent a notice of intent to sue letter to Mirant Maryland Ash Management and the Maryland Department of the Environment (“MDE’) for violations of the Clean Water Act and Maryland's water pollution control laws. In response to the notice of intent to sue, MDE filed suit against Mirant in circuit court on May 8, 2008, seeking injunctive relief and civil penalties, and alleging many of the same violations that were cited in the notice of intent to sue letter.

On August 21, 2008, EIP, the Potomac Riverkeeper, and the individual citizens (“Petitioners”) moved to intervene in MDE's suit. However, the Circuit Court for Charles County denied their motion. Petitioners appealed to the Court of Special Appeals, which affirmed the circuit court's decision holding that the Petitioners lacked the right to intervene under Md. Rule 2-214(a)(2) because they lacked standing and thus did not have sufficient interest in the underlying action and their interests were adequately represented by MDE. The Maryland Court of Appeals granted Petitioner’s writ of certiorari and CBF filed an Amicus Brief supporting Petitioners Motion to Intervene. However, the high court affirmed the circuit court’s ruling denying the Petitioner’s Motion for Intervention.

Maryland Court of Appeals
Patuxent Riverkeeper v. Maryland Department of the Environment, et. al.
Case No.: September Term 2010 – Case No. 139

During the 2009 Session of the Maryland General Assembly, several statutes were amended to allow interested parties the ability to challenge certain environmental agency decisions. Permits issued by Maryland Department of the Environment (MDE), for example, became subject to judicial review at the request of any person that (1) meets the threshold Article III standing requirements under federal law and (2) takes part in the public participation process unless such opportunity is not provided. Prior to this change, Maryland courts applied a "person aggrieved" standard for standing to challenge the merits of permitting environmental harm. The new laws, known as the "Maryland Standing Act," went into effect on January 1, 2010.

In 2007, a local builder applied to MDE for a permit to develop the Woodmore Towne Center, an approximately 245 acre residential and commercial development situated in the Patuxent River watershed. In March of 2010, MDE issued a permit granting authorization to build the Towne Center. On April 16, 2010, the Patuxent Riverkeeper sought judicial review of MDE's decision to issue the permit in the Circuit Court for Prince George's County. Both the developer and MDE moved to dismiss the case for lack of standing. Despite the new law that allowed for citizen standing in this case, the Circuit Court dismissed the Riverkeeper for lack of standing. An appeal to the Court of Appeals followed. Because this case presented a question of first impression in Maryland and concerned an area of law that addressed citizen participation in the permitting process, in April 2011, CBF and the Waterkeeper Alliance filed an Amicus Brief supporting the Patuxent Riverkeeper’s challenge of the Woodmore Towne Center non-tidal wetlands permit and the new state standing statutes. The Court of Appeals reversed the Judgment of the Circuit Court and held that the Patuxent Riverkeeper has standing because its member had alleged sufficient harm to aesthetic, recreational, and economic interest in connection with the issuance of the permit at issue.

Natural Gas

United States Court of Appeals for the District of Columbia Circuit
Allegheny Defense Project, et al., v. Federal Energy Regulatory Commission
Case No.: 17-1098

In January 2020, CBF joined the Southern Environmental Law Center and other partner groups to file an amicus brief at the D.C. Circuit Court of Appeals in a case challenging the Federal Energy Regulatory Commission’s (FERC) systematic delay in responding to challenges to natural gas pipelines and other energy projects. The Commission’s delay means that citizens, including groups like CBF, are prevented from challenging projects in court while those same projects can begin construction that damages water quality, forests, and habitat.

The case stems from an earlier ruling by the D.C. Circuit upholding FERC’s approval of the Atlantic Sunrise Project, which includes an upgrade to natural gas infrastructure in Pennsylvania and 200 miles of new pipeline. Although the three-judge panel of the D.C. Circuit upheld FERC’s approval for the Project, one judge wrote a strong concurrence explaining how FERC's use of “tolling orders”—which prevent affected citizens from challenging a project in Court—is unfair and should be reevaluated. The D.C. Circuit granted a request for rehearing by the full panel of D.C. Circuit judges, an en banc hearing.

In a win for landowners, on January 6, 2020, the full panel of the D.C. Circuit Court held that FERC could not use “tolling orders” to avoid facing a legal challenge in court for approval of projects like natural gas pipelines. The court held that FERC had to stick to a statutorily mandated 30-day time frame to come a decision on whether to accept a rehearing request.

Mountain Valley Pipeline

United States Court of Appeals for the Fourth Circuit
Sierra Club, et. al v. State Water Control Board and Mountain Valley Pipeline
Case No.: 17-2406

In February 2018, CBF filed an amicus curiae brief with the Fourth Circuit Court of Appeals in support of Sierra Club and other environmental groups, challenging a section 401 water quality certification issued by the Virginia State Water Control Board to Mountain Valley Pipeline. Section 401 of the Clean Water Act provides that any applicant for a federal license, including construction of an interstate natural gas pipeline, which may result in any discharge into navigable waters shall provide a certification from the state that any discharge associated with the project will be conducted in a manner which will not violate applicable state water quality standards.

In issuing the section 401 certification, the Virginia State Water Control Board and Department of Environmental Quality (DEQ) only reviewed upland construction activities and failed to consider other important aspects of the pipeline project, such as the combined effect on downstream water quality from multiple areas of disturbance occurring upstream and the increased sediment that will occur from construction activities. The Water Control Board and DEQ also failed to analyze how the harms associated with increased sediment loads during construction and operation of the pipeline will impact the Chesapeake Bay and the Clean Water Blueprint.

Construction of the pipeline would affect over 2,100 acres of land in Virginia, including streams, rivers, and wetlands in the Chesapeake Bay watershed. Twenty-four different creeks and other unnamed tributaries are expected to be damaged by upland runoff and stream crossings associated with the pipeline. Unfortunately, the 4th Circuit Court of Appeals upheld the 401 water quality certification in July 2018. CBF's litigation team will continue to monitor the developments of the pipeline project.

Pennsylvania—Clean Streams Law

Supreme Court of Pennsylvania Middle District
EQT Production Company v. Commonwealth of Pennsylvania, et. al.
Case No.: 6 MAP 2017

At the request of the Commonwealth of Pennsylvania, CBF filed an amicus brief in support of the Department of Environmental Protection's ("DEP") appeal of an Order from the Commonwealth Court of Pennsylvania. The lower court held that the release of a pollutant from industrial wastewater to groundwater is not a discharge under Section 307 of Pennsylvania's Clean Streams Law, 35 PA. Stat §691.307. The court also held that Pennsylvania's Clean Streams Law does not allow the Commonwealth to recover penalties for continuous water violations. The brief was filed in the Supreme Court of Pennsylvania's Middle District on May 10, 2017.

This case concerns the proper method for calculating penalties for violations associated with the illegal storage and release of flowback water and drilling production waste from unconventional natural gas drilling, known as "fracking." Fracking uses water to fracture shale rock underground where natural gas is found. Flowback fluid cannot be discharged to the ground or surface waters and must be stored, treated or reused. Oftentimes, flowback water is stored in large surface impoundments that are supposed to have impervious liners to prevent leaching of flowback fluid to water resources underground or flowing surface water.

EQT Corp. (“ETQ”) owns and operates natural gas wells in Duncan Township, Pennsylvania. In May 2012, EQT notified DEP of a leak to one of their impoundments whereby flowback fluid was leaking into the subsurface beneath the impoundment. This discharge caused ongoing harm to nearby vegetation and other living organisms in Rock Run and other tributaries to the Susquehanna River. The Commonwealth Court held that a penalty cannot be assessed for the movement of industrial waste like fracking flowback fluid from one body of water to another. This ruling essentially limits DEP's ability to recover penalties which would severely limit the agency's ability to deter illegal storage operations and is an incorrect interpretation of Pennsylvania's Clean Streams Law.

On March 18, 2018, the Supreme Court of Pennsylvania held that the fine imposed against EQT was excessive, in part, and not supported by language in the Clean Streams Law. The Court ruled that when pollution flows from one water body to another after a spill, it cannot be counted as a separate violation under state law. However, the Court did leave intact the broad remedial powers of the Clean Streams Law and DEP’s enforcement authority.

Pennsylvania—Stormwater Management

In The Supreme Court of Pennsylvania
The Borough of West Chester v. Pennsylvania State System of Higher Education, et al.
Case No.: 9 MAP 2023
Updated: 11/15/2023

In response to increased federal and state regulatory requirements regarding the management of stormwater runoff and the costs associated with installing stormwater management projects, the Borough of West Chester’s Council adopted the Stream Protection Ordinance in 2016. Polluted stormwater runoff from impervious surfaces has been a growing problem throughout the Commonwealth of Pennsylvania and is a threat to public health and safety. Stormwater runoff flows over land masses and impervious surfaces such as paved streets, parking lots, and building rooftops. The runoff accumulates pollutants including nutrients, toxic chemicals, and sediment, and flows directly into local waterways. As required by the Ordinance, the owners of Developed Properties, who are benefited by the Borough of West Chester’s (“the Borough”) stormwater management system, are required to pay the Stream Protection Fee. The Borough then deposits all sums collected through the Stream Protection Fee into a dedicated stormwater management fund which is used for specific stormwater-related purposes.

A portion of West Chester Universities campus lies within the Borough and the stormwater that flows from the impervious areas of the campus flows directly into the stormwater management system and then into a nearby waterway. West Chester University refused to pay the fee and claimed the stormwater charge constitutes a local tax, rather than a fee for service and therefore they are exempt from paying. On January 4, 2023, the Commonwealth Court of Pennsylvania issued an Opinion ruling in favor of the Pennsylvania State System of Higher Education and West Chester University holding that the Borough’s Stormwater Charge is a tax, rather than a fee.

The Borough appealed this decision to the Supreme Court of Pennsylvania and The Chesapeake Bay Foundation filed an amicus curiae brief in support of the Borough on July 13, 2023, requesting the court reverse the decision of the Commonwealth Court and hold that the Borough’s stormwater charge constitutes a fee that the Pennsylvania State System of Higher Education is required to pay. Arguments in this case have not been scheduled.  

Virginia Oyster Leases

Supreme Court of Virginia
C. Robert Johnson, et. al. v. City of Suffolk, et. al.
Record No.: 191563

Virginia watermen and oyster farmers filed a declaratory judgment action against the City of Suffolk and the Hampton Roads Sanitation District (HRSD) in the Circuit Court for the City of Suffolk. Petitioners claimed that the Defendants purposefully use, operate, and maintain the sanitary sewer systems and storm water systems in such a way that untreated sewage and wastewater invade the oyster beds forcing the VA Department of Health to close their leased grounds for shellfish harvesting. The Plaintiff’s claimed that they are owed compensation for their loss of profit caused by the untreated sewage discharged into the Nansemond River by the City of Suffolk and HRSD. In Sept 2019, The Circuit Court dismissed the case relying on a 1919 U.S. Supreme Court case, Darling v. City of Newport News, which held that an oyster bed lessee’s property rights are inferior to the locality’s right to pollute the waterways. Back then, cities routinely discharged sewage into local waters.

The watermen appealed this decision to the Virginia Supreme Court. CBF filed an Amicus Brief in support of the Petitioners. CBF argued that the watermen should be allowed to protect their property rights in their oyster leases and recover damages for profit losses associated with sewer discharges. Although the Virginia Supreme Court cited our amicus brief and the importance of oysters in the Bay, on Dec. 10, 2020, the court ultimately affirmed the judgment of the lower court. The court held that the City of Suffolk and the HRSD did not interfere with the Petitioners rights to be on the leased land, and they accepted the risk that the oysters might be polluted.

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