Appeals Court Upholds Stormwater Decision in Norfolk Southern v. Roanoke

(RICHMOND, VA)—The U.S. Court of Appeals for the Fourth Circuit today upheld a decision requiring that Norfolk Southern pay stormwater utility fees to the City of Roanoke. The Chesapeake Bay Foundation (CBF) intervened in this case on behalf of the city. CBF Vice President for Litigation Jon Mueller issued the following statement.

"This decision is an important precedent, upholding that all of us must do our fair share to reduce pollution to our waterways. Stormwater utility programs can ensure that properties that create polluted runoff help support projects that reduce this pollution. The health of Virginia's waterways and the Chesapeake Bay depends on the success of the many local stormwater programs across the Commonwealth."

In a concurring opinion, Judge J. Harvie Wilkinson III wrote:

"The arteries of the Chesapeake Bay wend through six states, including three in the Fourth Circuit (Maryland, West Virginia, and Virginia). Numerous localities in the Bay's watershed have clean-up schemes with fees comparable to Roanoke's. Norfolk Southern's position would put these projects at risk.
"Our rivers and estuaries are complex, interconnected ecosystems. It follows, therefore, that efforts to restore them are correspondingly complex and interconnected. Without the cooperation of all levels of government, as well as of private companies and citizens, our waters will continue to be compromised by pollution. The restoration effort imposes burdens on many people; happily, the benefits of clean waters (economic; health; scenic; recreational) accrue to just as many if not more. Everyone, including the owners and employees of Norfolk Southern, are better off when our streams run clear and estuarine flora and fauna are flourishing. It is only fair to ask those who benefit to shoulder some of the burden."

Editor’s note: The quote from Judge Wilkinson can be found on pages 20 and 21 of the attached opinion.

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