Reply Brief — Kinder Morgan Energy Partners, L.P., et al., Petitioners v. Upstate Forever, et al.

No. 18-268

In the

Supreme Court of the United States

________________

KINDER MORGAN ENERGY PARTNERS, L.P. and

PLANTATION PIPE LINE COMPANY, INC.,

v.

Petitioners,

UPSTATE FOREVER and SAVANNAH RIVERKEEPER,

________________

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

________________

REPLY BRIEF FOR PETITIONERS

________________

PAUL D. CLEMENT

Counsel of Record

ERIN E. MURPHY

C. HARKER RHODES IV

LAUREN N. BEEBE

KIRKLAND & ELLIS LLP

655 Fifteenth Street, NW

Washington, DC 20005

(202) 879-5000

paul.clement@kirkland.com

Counsel for Petitioners

November 6, 2018

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

REPLY BRIEF ............................................................ 1

I.

This Court Should Resolve The Circuit Split

Over Whether The Clean Water Act Applies

To Discharges Into Soil Or Groundwater ........... 2

A. There Is A Clear Circuit Split ...................... 2

B. The Decision Below Is Wrong And

Completely Unworkable ............................... 6

II. This Court Should Resolve The Circuit Split

Over Whether A Long-Ago-Ceased Discharge

Can Constitute An “Ongoing Violation” Of

The CWA ............................................................ 10

III. The Questions Presented Are Exceptionally

Important ........................................................... 12

CONCLUSION ......................................................... 13

ii

TABLE OF AUTHORITIES

Cases

Chesapeake Bay Found.

v. Severstal Sparrows Point,

794 F. Supp. 2d 602 (D. Md. 2011) .......................... 5

Day, LLC v. Plantation Pipe Line Co.,

315 F. Supp. 3d 1219 (N.D. Ala. 2018).................. 11

Gwaltney of Smithfield, Ltd.

v. Chesapeake Bay Found.,

484 U.S. 49 (1987) ........................................ 1, 11, 12

Hamker v. Diamond Shamrock Chem. Co.,

756 F.2d 392 (5th Cir. 1985).................................. 10

Hawai‘i Wildlife Fund v. Cty. of Maui,

886 F.3d 737 (9th Cir. 2018)................................ 6, 8

Kelley v. United States,

618 F. Supp. 1103 (W.D. Mich. 1985) ..................... 5

Ky. Waterways All. v. Ky. Utils. Co.,

905 F.3d 925 (6th Cir. 2018).......................... passim

Nat’l Cable & Telecomm. Ass’n

v. Brand X Internet Servs.,

545 U.S. 967 (2005) .................................................. 9

Quivira Mining Co. v. EPA,

765 F.2d 126 (10th Cir. 1985).................................. 5

Rapanos v. United States,

547 U.S. 715 (2006) .................................................. 7

Rice v. Harken Expl. Co.,

250 F.3d 264 (5th Cir. 2001)................................ 4, 7

Sackett v. EPA,

566 U.S. 120 (2012) ................................................ 12

iii

Sierra Club v. El Paso Gold Mines, Inc.,

421 F.3d 1133 (10th Cir. 2005)................................ 5

Simsbury-Avon Pres. Soc’y

v. Metacon Gun Club, Inc.,

575 F.3d 199 (2d Cir. 2009) ..................................... 4

Tenn. Clean Water Network

v. Tenn. Valley Auth.,

905 F.3d 436 (6th Cir. 2018)................................ 1, 2

U.S. Steel Corp. v. Train,

556 F.2d 822 (7th Cir. 1977).................................... 5

Umatilla Waterquality Protective Ass’n

v. Smith Frozen Foods,

962 F. Supp. 1312 (D. Ore. 1997) ............................ 5

Vill. of Oconomowoc Lake

v. Dayton Hudson Corp.,

24 F.3d 962 (7th Cir. 1994)...................................... 4

Waterkeeper All. v. EPA,

399 F.3d 486 (2d Cir. 2005) ..................................... 5

Statutes

33 U.S.C. §1362(12) .............................................. 6, 11

33 U.S.C. §1362(14) .................................................... 7

REPLY BRIEF

The need for certiorari in this case has only

increased since the petition was filed. Weeks after

petitioners sought certiorari, the Sixth Circuit

confirmed the existence of a clear circuit split on the

first question presented and deepened it, expressly

and unambiguously “disagree[ing]” with the Fourth

and Ninth Circuits on whether the CWA covers

discharges into groundwater that eventually percolate

into navigable waters. Ky. Waterways All. v. Ky. Utils.

Co., 905 F.3d 925, 933 (6th Cir. 2018); see Tenn. Clean

Water Network v. Tenn. Valley Auth., 905 F.3d 436,

438 (6th Cir. 2018). Respondents thus cannot deny the

square conflict in the lower courts on this question.

Nor do they identify any valid reason why this case

would not be an ideal vehicle for resolving the issue.

Instead, they dedicate considerable effort to

attempting to defend the decision below on the merits.

Those efforts not only are premature, but come up far

short, as the Fourth Circuit’s decision departs

radically from the statutory scheme and from the

careful federal-state balance Congress adopted.

The same goes for the second question presented.

By redefining an “ongoing violation” of the CWA to

include cases (like this one) where the discharge from

the point source ended years ago, the decision below

directly conflicts with Gwaltney of Smithfield, Ltd. v.

Chesapeake Bay Foundation, 484 U.S. 49 (1987), and

numerous cases faithfully following that precedent.

Once again, respondents identify no reason why this

case would not be an ideal vehicle to resolve the lowercourt division on this issue, and they utterly fail to

justify the Fourth Circuit’s mistaken approach.

2

Both questions presented are exceptionally

important. As numerous amici describe, the decision

below creates widespread regulatory uncertainty, and

dramatically increases the already-substantial

burdens imposed by the CWA on regulated parties.

The Court should grant the petition.

I.

This Court Should Resolve The Circuit Split

Over Whether The Clean Water Act Applies

To Discharges Into Soil Or Groundwater.

Unable to deny the clear conflict between the

decision below and the Sixth Circuit’s recent decisions,

respondents attempt to minimize the scope of the

conflict in the lower courts, and assert the decision

below is correct. They are wrong on both counts.

A. There Is A Clear Circuit Split.

As respondents concede, the Sixth Circuit has

now confirmed and deepened the clear circuit split

over whether the CWA applies to a discharge into

groundwater that eventually percolates via a “direct

hydrological connection” into navigable water. See

BIO.2-3, 17. In two recent decisions, the Sixth Circuit

expressly “disagree[d] with the decisions from [its]

sister circuits” in this case and the Ninth Circuit’s

Hawai’i Wildlife Fund case, rejecting “the so-called

‘hydrological connection’ theory” and holding that “the

CWA does not extend its reach to this form of

pollution.” Ky. Waterways, 905 F.3d at 932-33; see

Tenn. Clean Water, 905 F.3d at 438 (finding “no

3

support for this theory in either the text or the history

of the CWA”).1

Despite acknowledging this undeniable split,

respondents try to minimize its scope. Their efforts

are in vain. First, respondents are wrong to suggest

the decision below does not apply the CWA to

“discharges of pollutants into groundwater.” BIO.1-2;

see BIO.25-26. To be sure, the decision purported to

limit its holding to only some discharges into

groundwater—those that eventually reach navigable

waters through a “direct hydrological connection.”

App.26. But as the Sixth Circuit explained, applying

the CWA to any discharges into groundwater violates

the statutory text and disrupts the federal-state

balance.

Ky. Waterways, 905 F.3d at 934-37.

Moreover, the limitation respondents trumpet is no

limitation at all. Practically all groundwater has some

“hydrological connection” to nearby navigable waters,

and it is impossible for anyone to predict whether a

court will someday consider that connection “direct”

enough to trigger the CWA. See Pet.28-29, 34-35.

Indeed, respondents do not even attempt to give any

content to “direct,” instead insisting that all that

really matters is whether “the pollutants being added

to surface waters are from the defendant’s point

source.” BIO.24.

Respondents are equally wrong to suggest that

the Sixth Circuit, rather than the Fourth or Ninth

Circuit, is the outlier. When this case began, the

circuit courts had uniformly held that a discharge into

1 Respondents note that “petitions for rehearing are pending in

both cases,” BIO.2, but fail to mention that only one petition (in

Tennessee Clean Water) challenges the relevant holding.

4

soil and groundwater is outside the CWA—whether or

not that discharge later percolates into navigable

waters. Pet.16-18; App.68; see Rice v. Harken Expl.

Co., 250 F.3d 264 (5th Cir. 2001), Vill. of Oconomowoc

Lake v. Dayton Hudson Corp., 24 F.3d 962 (7th Cir.

1994). Respondents’ efforts to deny this consensus are

unavailing.

First, respondents are wrong to claim Rice and

Oconomowoc Lake “merely held that groundwater

itself is not a water of the United States.” BIO.14. On

the contrary, both cases addressed discharges that

“seeped through the ground into groundwater which

has, in turn, contaminated … surface water.” Rice,

250 F.3d at 270; see Oconomowoc Lake, 24 F.3d at 965

(addressing “possibility that [discharges] will enter

the local ground waters, and thence … ‘waters of the

United States’”). And they rejected the precise theory

the Fourth Circuit adopted here, holding that the

CWA does not “assert[] authority over” any

groundwater that “may be hydrologically connected

with surface waters.” Oconomowoc Lake, 24 F.3d at

965; see Rice, 250 F.3d at 270-72; Pet.16-18.

Nor does the decision below accord with the other

federal appellate decisions cited in the petition, which

make clear the CWA does not cover any and all

discharges (through groundwater or otherwise) that

eventually percolate into navigable waters. See, e.g.,

Simsbury-Avon Pres. Soc’y v. Metacon Gun Club, Inc.,

575 F.3d 199, 223-24 (2d Cir. 2009); Sierra Club v. El

5

Paso Gold Mines, Inc., 421 F.3d 1133, 1141 & n.4 (10th

Cir. 2005).2

Second, and conversely, respondents are wrong to

claim a “consensus” of earlier circuit-court decisions

supporting the Fourth and Ninth Circuits. Unlike

Rice and Oconomowoc Lake, none of those cases

actually decided whether the CWA applies to isolated

discharges into groundwater that eventually seep into

navigable waters. See Waterkeeper All. v. EPA, 399

F.3d 486, 513-15 (2d Cir. 2005) (upholding EPA

decision to impose limited groundwater monitoring

and discharge-control restrictions against challenge

by environmental groups seeking greater restrictions);

U.S. Steel Corp. v. Train, 556 F.2d 822, 852 (7th Cir.

1977) (upholding limitations on discharges into wells

“in conjunction with” limitations on discharges into

surface waters); Quivira Mining Co. v. EPA, 765 F.2d

126, 129-30 (10th Cir. 1985) (pre-Rapanos holding

that dry arroyos in which “surface flow occasionally

occurs, at times of heavy rainfall,” were “navigable

waters”). At any rate, even if those cases could be read

to support the decision below, that would only deepen

the split and underscore the need for this Court’s

intervention.3

2 Respondents concede the district courts are divided on this

question, see BIO.16-17, but they are wrong to suggest that only

four have rejected their theory. See also, e.g., Chesapeake Bay

Found. v. Severstal Sparrows Point, 794 F. Supp. 2d 602, 619-20

(D. Md. 2011); Umatilla Waterquality Protective Ass’n v. Smith

Frozen Foods, 962 F. Supp. 1312, 1320 (D. Ore. 1997); Kelley v.

United States, 618 F. Supp. 1103, 1107 (W.D. Mich. 1985).

3 So too for respondents’ other “indirect discharge” cases. See

BIO.11-12. Those cases involved pollutants carried to navigable

waters by air or surface water, not discharges into groundwater

6

B. The Decision Below Is Wrong And

Completely Unworkable.

Respondents’ efforts to defend the decision below

on the merits are both premature and unavailing. The

CWA’s text, structure, and history overwhelmingly

establish that the statute does not apply to discharges

to soil or groundwater, regardless of any “direct

hydrological connection” to nearby navigable waters.

Pet.20-29.

Like the Fourth Circuit, respondents primarily

argue that the CWA can be stretched to reach

discharges into groundwater that then migrate into

navigable waters. BIO.18; see App.19-20. It cannot.

As the Sixth Circuit explained, the statutory text

“forecloses the hydrological connection theory.” Ky.

Waterways, 905 F.3d at 934. By its plain terms, the

statute “addresses only pollutants that are added ‘to

navigable waters from any point source.’” Id. (quoting

33 U.S.C. §1362(12)).

That excludes pollutants

“coming from groundwater, which is a nonpoint-source

conveyance”—whatever “hydrological connection” it

may have to nearby navigable waters. Id.; see Pet.2021. The “direct hydrological connection” test, by

contrast, has no textual basis whatsoever—as even

the Ninth Circuit recognized in rejecting it. Hawai‘i

Wildlife Fund v. Cty. of Maui, 886 F.3d 737, 749 n.3

(9th Cir. 2018). Nor is there any textual support

whatsoever for a test that turns on whether the

or soil, which are distinctly the subject of state regulation. But

to the extent they provide any support for the decision below,

they only deepen the conflict.

7

“distance” between the point source and the navigable

waters is sufficiently “short.” BIO.9; App.25.

Respondents also have no persuasive answer to

the legislative history showing that Congress

specifically designed the CWA to “[leave] the

regulation of groundwater to the States” and rejected

efforts to extend federal regulation to groundwater in

order to better regulate navigable waters. Rice, 250

F.3d at 271-72.

Reading the statute to reach

discharges into any groundwater with a direct

hydrological connection to navigable waters would

eviscerate Congress’ judgment and eliminate that

federalism-preserving line between federal and state

water regulation. Pet.5-6, 22-24.

Respondents’ effort to divine support from Justice

Scalia’s Rapanos opinion is unavailing. See Ky.

Waterways, 905 F.3d at 935-36 (noting that

“proponents of the hydrological connection theory”

have taken Rapanos “out of context in an effort to

expand the scope of the CWA well beyond what the

Rapanos Court envisioned.”). Indeed, respondents do

not even mention the actual holding of Rapanos—

which reversed the Sixth Circuit for extending the

CWA to all wetlands with “hydrological connections”

to nearby navigable waters. Rapanos v. United States,

547 U.S. 715, 730-31, 757 (2006) (plurality opinion);

id. at 784 (Kennedy, J., concurring in the judgment);

Pet.26-28. The Rapanos plurality observed that the

CWA may reach point-source discharges that “do not

emit ‘directly into’ covered waters, but pass ‘through

conveyances’”—i.e., one or more point sources before

reaching navigable waters. 547 U.S. at 743; see 33

U.S.C. §1362(14) (“point source” means a “discernible,

8

confined and discrete conveyance”). But that is a far

cry from expanding the CWA to discharges to

groundwater, which is not a point source and which

Congress intentionally excluded from the statute.

Pet.26-28.

The atextual standard adopted below is also

wholly unworkable. Indeed, the Fourth and Ninth

Circuits cannot even agree on what atextual standard

applies. See Pet.19 & n.3; Hawai‘i Wildlife Fund, 886

F.3d at 749 n.3 (rejecting “direct hydrological

connection” in favor of “fairly traceable” standard).

And neither standard provides any reliable guidance

to regulated parties. See Pet.34-35; Br. of Amici

Curiae Chamber of Commerce et al. (“Chamber Br.”)

11-13. To the contrary, “[r]eading the CWA to cover

groundwater pollution like that at issue in this case

would upend the existing regulatory framework.” Ky.

Waterways, 905 F.3d at 937. The CWA leaves

groundwater pollution to the States and other federal

environmental laws. Id. at 936-37; Pet.28. Stretching

the CWA permitting scheme to regulate discharges

percolating through groundwater into navigable

waters not only interferes with those existing

regulatory schemes, but presents severe practical

problems, as NPDES effluent-limitation permits do

not readily apply to pollutants traveling via diffuse

groundwater migration. Pet.28-29. Given that the

CWA is ill-equipped to address such discharges, and

that other comprehensive state and federal programs

already address groundwater pollution, the decision

below is an unworkable solution to a nonexistent

problem.

9

Respondents insist that their interpretation is

workable because, they claim, several circuits have

long applied their view. BIO.28-32. As explained,

they misread those decisions. See supra p.5. The

reality is that interpreting the CWA to require

NPDES permits for all discharges into groundwater

with a “direct hydrological connection” to navigable

waters is a brave new world that raises all manner of

practical problems and threatens to increase the

number of required permits exponentially. See Br. of

Amici Curiae West Virginia et al. (“States’ Br.”) 11-16;

Chamber Br.11-14.

Finally, the current EPA rulemaking does not

diminish the need for this Court’s review. EPA has

taken no public action since the comment period ended

in May, and it is unlikely that any action it takes will

resolve the issue—especially when the Sixth Circuit

on one side, and the Fourth and Ninth Circuits on the

other, have each concluded their tests are compelled

by the statutory text. See Nat’l Cable & Telecomm.

Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982

(2005)

(agency

cannot

vary

from

judicial

interpretation that “follows from the unambiguous

terms of the statute”).

Indeed, respondents

themselves insist that the statutory text is clear. At

best, then, waiting for an EPA rulemaking that may

never come would mean more years of circuit conflict,

followed by certiorari on the same issue with

additional Chevron/Brand X questions. That course

has nothing to recommend it.

10

II. This Court Should Resolve The Circuit Split

Over Whether A Long-Ago-Ceased Discharge

Can Constitute An “Ongoing Violation” Of

The CWA.

Review is equally warranted on the second

question presented. Respondents argue that the

decision below implicates no conflict and is correct on

the merits. They are wrong on both counts.4

First, respondents are mistaken to deny a circuit

split. Despite acknowledging the different facts, the

Fourth Circuit did not settle for factual distinctions

but specifically “decline[d] to adopt the Fifth Circuit’s

approach.” App.17-18 & n.9; see Hamker v. Diamond

Shamrock Chem. Co., 756 F.2d 392, 397 (5th Cir.

1985) (holding that “a past discharge … with

continuing negative effects” is not an ongoing

violation).

Respondents assert that Hamker dealt only with

allegations that a past pipeline leak left

contamination in the soil and groundwater, without

also alleging that pollution was carried via

groundwater to the nearby creek. BIO.36. But

nothing in Hamker suggests that it turned on the

absence of an easily-added allegation that polluted

groundwater was seeping into the nearby creek;

instead, it turned on the fact that there was “only one

‘discharge’ … from the defendant’s pipe,” and that

Respondents suggest in passing that this question is

jurisdictional, but it is not jurisdictional in the strict sense of the

term, and neither court below treated it as such. In all events, it

would hardly make sense to deny certiorari to allow the lower

courts to continue to impermissibly adjudicate a dispute over a

long-ceased discharge.

4

11

discharge ended when the pipe was repaired. 756 F.2d

at 397. The decision below cannot be reconciled with

that reasoning, or with the numerous other cases

holding that a past discharge is not a continuing

violation. See, e.g., Day, LLC v. Plantation Pipe Line

Co., 315 F. Supp. 3d 1219, 1236-41 (N.D. Ala. 2018)

(recognizing division of authority and specifically

disagreeing with decision below); Pet.33.

Nor can it be reconciled with Gwaltney. As

Gwaltney explained, the CWA authorizes citizen suits

to remedy ongoing CWA violations, not those that are

“wholly past.” 484 U.S. at 64; see Pet.30-32. Faced

with that clear limitation, respondents (like the

Fourth Circuit) argue that the purported violation

here remains “ongoing” because the groundwater

continues to carry contamination into nearby

navigable waters. BIO.33-35. But that runs head-on

into the text of the CWA, which regulates only

discharges to navigable waters “from any point

source.” 33 U.S.C. §1362(12) (emphasis added). It is

undisputed that groundwater is not a point source—

and so by definition, the migration of pollution

through groundwater into navigable water cannot be

a CWA violation at all, let alone an “ongoing

violation.” Respondents’ insistence otherwise is a

product of their profoundly mistaken view that the

CWA is concerned only with whether pollutants are

finding their way into navigable waters, not with how

they get there.

Respondents’

interpretation

is

equally

incompatible with the concerns motivating Gwaltney.

Indeed, this case is a prime example of how allowing

citizen suits based on wholly past discharges would

12

“undermine the supplementary role envisioned for the

citizen suit” and “change the nature of the citizens’

role from interstitial to potentially intrusive.” 484

U.S. at 57, 60-61. The South Carolina Department of

Health and Environmental Control is already

supervising extensive remediation efforts to address

residual contamination from the spill. Pet.9-10.

Respondents are clearly dissatisfied with those statesupervised efforts, but the CWA does not authorize

them to sue in federal court to seek their own

preferred remediation plan when the only point source

ceased any discharge years ago.

III. The Questions Presented Are Exceptionally

Important.

As explained in the petition, and emphasized by

numerous amici, the questions presented are

exceptionally important.

Pet.34-36.

Indeed,

respondents make no attempt to deny the importance

of the first question presented. Left unreviewed, the

decision below would expand the NPDES permitting

program exponentially, with corresponding burdens

on States that operate their own NPDES programs

and on regulated businesses and individuals. See, e.g.,

States’ Br.11-16; Chamber Br.11-14; Br. of Amicus

Curiae Am. Petroleum Inst. et al. 14-20; Br. of Amicus

Curiae Pac. Legal Found. 10-13. And it would impose

an indefinite standard that would make it nearly

impossible to determine in advance whether a given

discharge into groundwater has a sufficient “direct

hydrological connection” to navigable waters to

require a permit.

Instead of the “clarity and

predictability” that regulators and regulated parties

need, see Sackett v. EPA, 566 U.S. 120, 133 (2012)

13

(Alito, J., concurring), the decision below sows only

boundless confusion.

The panel majority’s second holding compounds

the confusion and raises the stakes by opening the

door to private citizen suits (with attorney fees)

whenever any lingering contamination is still making

its way into navigable waters, even if the point source

stopped discharging any pollutants years earlier.

Nothing about that holding is fact-bound or of limited

importance. On the contrary, it presents a pure legal

question that has massive importance to anyone who

has ever, whether intentionally or inadvertently,

discharged pollutants anywhere near a stream.

CONCLUSION

The Court should grant the petition.

Respectfully submitted,

PAUL D. CLEMENT

Counsel of Record

ERIN E. MURPHY

C. HARKER RHODES IV

LAUREN N. BEEBE

KIRKLAND & ELLIS LLP

655 Fifteenth Street, NW

Washington, DC 20005

(202) 879-5000

paul.clement@kirkland.com

Counsel for Petitioners

November 6, 2018