Rollin' Along the River

By Erin Potter Sullenger

A coalition of environmental groups led by the Sierra Club brought an inventive case in a federal district court in the state of Washington under the Federal Water Pollution Control Act, more commonly known as the Clean Water Act. In Sierra Club v. BNSF Railway Co.,1 the plaintiffs alleged that BNSF was and is illegally discharging coal, coal dust and coal byproducts into waters of the United States from the trains carrying coal produced from the mines of the Powder River Basin in Wyoming and Montana, through the state of Washington to export terminals in Canada and coal-fired power plants and other facilities in the region. Plaintiffs based their allegations on the alleged fact that “each and every coal train and each and every rail car carrying coal discharges coal pollutants to waters of the United States when traveling adjacent to, over, and in proximity to the waters of the United States.”2

To the surprise of many, this case made it all the way to the trial phase before the parties reached a settlement. Along the way, however, the federal court issued a written order and opinion denying both parties’ motions for summary judgment that energy lawyers should note because of its potentially broad implications for pipelines and other discrete conveyances including transportation by barge and trucks. The court order held that the coal train and rail cars were in fact “point sources” under the Clean Water Act if it could be shown that coal, coal dust and coal byproducts were discharged from the train and rail car and into a waterway. This finding, that a moving train can be a point source, is an application of the term “rolling stock” used in the definition of point source and can lead to a more troubling future for many industries.

SETTING THE STAGE
Before we dive into the details and written orders and opinions from the court, let us set the stage, orient ourselves to the coal industry, and provide a refresher on important terms from the Clean Water Act.

Battle Over Coal
For decades, if not a century or more, coal was the primary source of fuel to fire boilers used to generate electricity and run manufacturing facilities. The United States has the world’s largest estimated recoverable reserves of coal.3 In 2014, approximately 70 percent of the 1 billion short tons of coal produced came from five states — Wyoming, West Virginia, Kentucky, Pennsylvania and Illinois.4 Despite the oft referred to “war on coal,” coal still provides a significant portion of the electricity in the United States. During the first half of 2016, coal-fired power plants supplied 31 percent of the U.S. electricity generation, second only to natural gas electricity generation, which supplied 36 percent of the total U.S. electricity.

You may not know that Oklahoma has the most significant deposits of bituminous coal between the Mississippi River and the Rocky Mountains, located in coal beds in eastern Oklahoma, across 20 counties in an area covering approximately 8,000 square miles.6 In 2013, Oklahoma produced just over 1 million tons of coal and was ranked 21st among coal producing states in 2014.7 In 2014, four of Oklahoma’s 10 largest power generation facilities utilized coal as the primary energy source, including the northeastern facility in Oologah operated by Public Service Co. of Oklahoma, Oklahoma’s top generating facility.

The coal at issue in the lawsuit of interest in this article comes from the Powder River Basin (PRB). The PRB contains significant coal beds that extend from northeastern Wyoming and southeastern Montana. Covering 19,500 square miles, the PRB contains the largest source of low-sulfur, low-ash, sub-bituminous coal in the United States and is considered the single most important coal basin in the United States, producing on average 400 million tons of coal each year.9 To get the coal from the PRB to the markets, the coal is loaded into rail cars and transported to export terminals and coal-fired power plants across the United States, including power generation facilities here in Oklahoma.10 

Trains transport nearly 70 percent of the coal deliveries in the United States at least part of the way from the mines to the consumers.11 Coal rail cars are typically uncovered, which allows fugitive coal dust, coal and other byproducts to escape the rail cars during transport. So why not cover them? The rail cars are left uncovered because spontaneous combustion of the coal is a well-known phenomenon resulting from the confinement of coal and coal dust. Coal from the PRB has even been delivered to a power plant with the rail car partially on fire.12 

However, even though the cars are uncovered, BNSF requires shippers of coal to comply with BNSF’s coal loading rule and load the cars in compliance with its “Load Profile Template.”13 The template profile is designed to reduce the amount of coal dust exiting the cars during transportation. BNSF also applies one of seven topper agents (such as surfactants) that have been shown to reduce coal dust losses by at least 85 percent when used in conjunction with the coal-load profile.14 

More than five years ago, the Sierra Club launched a “Beyond Coal” campaign. The Sierra Club calls coal “an outdated, backward and dirty 19th-century technology.”15 The main objective of the campaign is “to replace dirty coal with clean energy by … advocat[ing] for the retirement of old and outdated coal plants and prevent new coal plants from being built.”16 This includes “[k]eeping coal in the ground in places like Appalachia and Wyoming’s Powder River Basin.”17 The Beyond Coal campaign may have served as the impetus for the Washington civil suit.

The Sierra Club found partners for the litigation in environmental organizations in the state of Washington who were concerned about the number of coal trains and amount of coal traveling through the state of Washington.18 Trains laden with coal from the PRB travel across the state of Washington to export terminals in British Columbia,19 as well as to the coal-fired power plant in the state of Washington.20 Also at play in the region are proposals for at least two coal export terminals to be built in Washington that would increase the number of coal trains crossing the state. One proposed terminal, Gateway Pacific Terminal at Cherry Point, failed to receive the necessary permitting from the Army Corps of Engineers, stopping any further development of the project.21 Another proposed export terminal in Longview, Washington, sitting in the shadow of Mount St. Helens and 130 miles south of Seattle, remains under review. The terminal would be located at Millennium Bulk Terminals, which is currently used to import bulk alumina for use in a nearby aluminum smelter.22 If approved, the terminal would export up to 44 million metric tons of coal each year, with Asia as the primary market. 

Clean Water Act
The Clean Water Act (CWA) has been around for the better part of 40 years. Passed in 1972, Congress set a lofty goal of eliminating all discharges of pollutants into navigable waters in an effort “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”23 Toward this end, Congress prohibited all discharges of pollutants into the nation’s waters, except for those that are in compliance with specific provisions of the CWA, including Section 402, which authorizes discharge through the National Pollutant Discharge Elimination System (NPDES) permitting program.24 The NPDES permitting program is often delegated to a state agency for implementation and requires a potential discharger to first obtain a permit that specifically limits the type and quantity of pollutants to be released into a water from a point source. A point source is defined as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.”25 Thus, all unpermitted discharges of any pollutant from these point sources are a violation of the CWA. 

CWA Citizen Suit Provision
As with many other major environmental laws, the CWA has a provision whereby a citizen can bring a civil suit in federal district court to enforce certain provisions of the CWA. Section 505 of the CWA authorizes a citizen to commence a civil action “against any person … who is alleged to be in violation of (A) an effluent standard or limitation … or (B) an order issued by the Administrator or a State with respect to such a standard or limitation.”26 A citizen is permitted to bring the suit if it provides proper notice and so long as the U.S. Environmental Protection Agency (U.S. EPA) or state environmental agency has not commenced and is diligently prosecuting a civil or criminal action against the alleged violator.27 Proper notice occurs if it is provided 60 days prior to commencement of the civil suit. The content of the notice is prescribed by the regulations in 40 C.F.R. 135.3(a):

Notice regarding an alleged violation of an effluent standard or limitation or of an order with respect thereto, shall include sufficient information to permit the recipient to identify the specific standard, limitation, or order alleged to have been violated, the activity alleged to constitute a violation, the person or persons responsible for the alleged violation, the location of the alleged violation, the date or dates of such violation, and the full name, address, and telephone number of the person giving notice.

The federal courts generally require strict compliance with these notice requirements.28 

SIERRA CLUB TAKES ACTION
On April 2, 2013, Sierra Club, Puget Soundkeeper Alliance, Columbia Riverkeeper, Friends of the Columbia Gorge and RE Sources for Sustainable Communities sent a Notice of Intent to Sue letter (NOI letter) under Section 505 of the CWA to BNSF Railway and several coal and energy companies. The NOI letter alleged violations of the CWA resulting from the “discharge [of] coal, coal chunks, coal dust, metabolites or related byproducts of coal, and other substances or materials added to the coal including, but not limited to surfactants and suppressants, and petroleum coke (petcoke) and its byproducts (collectively referred to as pollutants) into waters of the United States throughout the State of Washington” without a discharge permit.29 

The NOI letter further alleged that every train and every rail car (i.e. rolling stock) was a point source and had discharged pollutants when traveling “adjacent to, over, and in proximity to waters of the United States” from 2008 through the present.30 The allegations were largely based on observations of members of the organizations and on the 2010 testimony of a BNSF vice president before the Surface Transportation Board regarding coal loss during rail transportation. In its testimony, BNSF stated “each rail car loses between 250 and 700 pounds of coal and coal dust on each trip for an average loss of 500 pounds of coal lost from each car per trip.” Accordingly, a train with 120 cars could lose an average of 30 tons of coal in one trip.31 The NOI letter went on to identify over 50 waterways throughout the state of Washington into which BNSF was allegedly discharging pollutants from its coal trains and coal cars without a Section 402 NPDES permit.

When the U.S. EPA or the Washington Department of Ecology failed to bring an enforcement action and BNSF declined to cease transporting coal, plaintiffs filed a civil suit on June 4, 2013, in the U.S. District Court for the Western District of Washington naming BNSF and several coal companies as defendants. Plaintiffs voluntarily dismissed numerous defendants and on July 29, 2013, filed an amended complaint that named BNSF as the only defendant.

Based on plaintiffs’ allegations, BNSF faced a multimillion dollar potential liability. Plaintiffs urged the court to find BNSF liable for at least 12,583,440 violations from 2012 through 2015 based on a finding that all rail cars discharge continuously or to find that BNSF is liable for at least 15,000 violations based on individual discharge events. The maximum penalty, at the time, was $37,500 per day per violation.

MOTION FOR SUMMARY JUDGMENT
On August 19, 2016, plaintiffs and defendant filed competing motions for summary judgment. Both parties raised three issues in their briefing: Article III standing, liability for alleged CWA violations and pre-emption of CWA remedies by the Interstate Commerce Commission Termination Act. The court addressed only the first two — standing and alleged CWA violations. This discussion focuses on the court’s analysis of the alleged CWA violations.32

To establish a violation of the CWA, a citizen-plaintiff must establish the defendant is a person who has discharged a pollutant from a point source into navigable waters without a NPDES permit.33 The parties agreed the only element in dispute was whether the coal train and rail cars could be considered a point source. The key difference between point and nonpoint source is “whether the pollution reaches the water through a confined, discrete conveyance.”34 The court explained “it is widely understood” that nonpoint source pollution is “the type of pollution that arises from many dispersed activities over large areas, and is not traceable to any single discrete source.”35 Further, the court emphasized that rolling stock was part of the definition of a point source.36 

The court first considered whether coal dust and coal emissions to the land adjacent to the tracks and then made their way into a nearby waterbody were CWA discharges.37 BSNF argued that “releases to land, and from land to water, are not CWA ‘discharges’ because they are not a discrete conveyance of coal directly to water.”38 The court agreed insofar as plaintiffs provided nothing to show that there was a “discrete conveyance of coal into the water” when that coal was first deposited onto the land. Plaintiffs argued that the coal from the trains enters the water “via wave wash, gravity, fluctuation in water levels, vibration, and the like.”39 The court stated that plaintiffs needed to show “BNSF trains[] caused the coal to move to the water.”40 The court held that “coal discharges to land and from land to water are not point source discharges” under the CWA. 

BNSF’s second argument was that aerial or windblown emissions from rail cars directly into waters should be considered nonpoint source discharges.41 To this point the court sought guidance from the cases dealing with nonpoint source pollution. In League of Wilderness Defs./Blue Mountains Biodiversity Project,42 the 9th Circuit held that spraying pesticides from spraying apparatus on an airplane was a point source when sprayed directly over water.43 Other courts found that airborne pollution is not a point source discharge when the pollution is not discharged via a discernable, confined, and discrete conveyance,” even if that source is a stationary coal pile away from a navigable waters.44 The court found the BNSF case was more akin to League of Wilderness Defs./Blue Mountains Biodiversity Project. The court found “the coal particles allegedly discharged by BNSF trains that travel adjacent to and above the waters at issue are point source discharges because there is a discrete conveyance: the BNSF trains that directly travel next to or across the water. Defendant is liable for these aerial point source discharges …”45 

The court stopped short, however, of finding that BNSF had in fact discharged coal dust and particles into the waterways, stating that a reasonable trier of fact could determine that plaintiffs did not meet their burden of proof.46 Instead, the court found there to be disputes of material fact regarding plaintiffs’ “central theory” of the case — that “each and every train and each and every rail car discharges coal pollutants to waters of the United States.”47 The court thus declined to find defendant liable of any violations, and the case proceeded to trial.

BNSF Avoids Final Judgment
After a week of trial, BNSF and the environmental groups reached a settlement.48 In the settlement, BNSF denied any violations of environmental laws, but agreed to undertake efforts to address the allegations made by the environmental plaintiffs. The settlement also postpones the trial on BNSF’s liability and allows BNSF to avoid the possibility of a federal court ruling and judgment as to liability for illegal discharges under the CWA. The terms of the settlement provide:

1) First, BNSF agreed to conduct a two-year study on the use of physical covers for coal and petroleum coke trains. The results of the study will be incorporated into BSNF’s own practices.
2) Second, BNSF will spend $1 million on environmental projects in the state of Washington. 
3) Third, BSNF will clean up certain areas where coal has accumulated along the tracks near waterways, removing coal and/or petcoke in those areas most affected by BNSF coal trains.
4) Fourth, the plaintiffs agreed not to bring similar litigation against BNSF for five years.


The settlement also allows BNSF to avoid a preclusive effective of the court’s point source determination. The order denying the parties’ summary judgment motions was an interlocutory ruling because the court failed to find BNSF liable for any of the alleged CWA discharge violations due to the disputes of material fact.49 It would have been an appealable order once the court reached a final judgment, but the parties settled, preventing any final judgment and making the order denying summary judgment nonappealable. This eliminates any preclusive effect from this order.50

WHAT HAPPENS NOW?
While the settlement allowed BNSF to avoid a potential final judgment that it was in fact discharging coal pollutants into waters of the United States and avoiding the preclusive effect of the court’s holding that coal trains and rail cars are point sources under the CWA, it does creates a persuasive precedent for other courts to follow. It also raises new questions and uncertainty.

First, the settlement does not erase the  persuasive value of the court’s finding at summary judgment that the coal trains and rail cars are point sources under the CWA if it can be shown the coal, coal dust and coal byproducts released from the car goes directly into a waterway. Environmental groups now have a road map for bringing similar citizen suits against other railroads throughout the U.S. and federal courts have a district court order to lean on regardless of whether this finding is binding. Arguably, the question for future cases will not be whether the train and rail car can be a point source, but whether future plaintiffs show that a rail car is discharging directly into a body of water. We do not know whether the evidence presented by plaintiffs was sufficient to show that BNSF trains were discharging into waterways in violation of the CWA or whether plaintiffs’ evidence was sufficient to show a discharge in every waterway that BNSF trains cross throughout the state of Washington. 

This will likely not stop with coal or with the railroads. Now that this case brought rolling stock into the forefront of a CWA citizen suits, what does this mean for trains with open hopper cars or closed hopper rail cars with drop-bottom doors that leak corn or grain? Would that be a case where the court would say, “If you own the leaky ‘faucet,’ you are responsible for its ‘drips’”?51 

Second, if a train and its rail cars are rolling stock under the CWA definition of a point source, could a court extend this reasoning to other vehicles traveling down roads and highways? We have all been behind trucks carrying sand, gravel, dirt, lawn debris, to name a few, and watched part of the load blow off the top or trickle out the sides. Does this now mean that any truck carrying sand, asphalt, gravel and rocks, grain, hay and construction debris is now a point source if particles from the load fall into a waterway as the truck travels over or along that waterway?52 How could this possibly be regulated and enforced?

Another unanswered question is how the new Clean Water Rule might have changed the court’s holding. The U.S. EPA and Army Corps of Engineers published that Clean Water Rule, which broadly defines a “waters of the United States” on June 29, 2015. Commonly referred to as the WOTUS Rule, many states and industries have brought lawsuits challenging the rule. These lawsuits are still pending primarily in the 6th Circuit Court of Appeals, which has asserted jurisdiction.53 The U.S. Supreme Court recently granted cert. to review this finding and the merit case is on hold.54 

The BNSF court’s ruling as to whether a train or rail car was a point source was dependent upon whether the coal particles that escaped fell onto land or into a waterway. If the coal particles fell onto land, the train and rail cars were not point sources. However, if coal particles fell from the train or rail car and into a navigable water, that was sufficient to meet the definition of a point source discharge and would require a NPDES permit. But what if coal particles fall into an isolated body of water or in an area that is wet only because of a recent rain or period of flooding?

As currently written, the WOTUS Rule could expand the scope of when a train or rail car or any rolling stock could be considered a point source. The rule could allow an interpretation whereby discharges of pollutants into what are otherwise isolated bodies of water within 4,000 feet from a navigable water be found to be discharges that require NPDES permits.  This is because the rule utilizes a “significant nexus” analysis on a case-by-case basis to determine whether a water is a “waters of the United States.”55 The rule calls for a significant nexus analysis to be performed for all “waters located within the 100-year floodplain of a traditional navigable water, interstate water or the territorial seas, and for waters located within 4,000 feet from the high tide line or ordinary high water mark of traditional navigable waters, interstate waters, the territorial seas, impoundments or tributaries.”56 

Now that the transition to the Trump administration is underway and the U.S. Supreme Court has granted cert. to evaluate jurisdictional questions, the future of the WOTUS Rule in its current form looks ominous. The review by the Supreme Court allows time for the administration or Congress to take action to resolve the issue. President Trump pledged to eliminate the WOTUS Rule,57 but it is not clear he would resist addressing the issue altogether. As part of his energy plan, President Trump states that we need “responsible stewardship of the environment. Protecting clean air and clean water, conserving our natural habitats, and preserving our natural reserves and resources will remain a high priority.”58 In any event, eliminating WOTUS leaves us with the status quo, interpreting the significant nexus test. While this has led to less certainty as to when certain areas are or are not a “water of the U.S.” under the CWA, the recent success of pre-enforcement judicial review cases59 could result in the agencies being less willing to assert jurisdiction in situations where there is a tenuous nexus. This may provide the ultimate result the new administration seeks.

CONCLUSION
Even though this is a first of its kind Clean Water Act case that ended in a settlement, avoiding a final judgment at the conclusion of a trial, the pretrial order denying summary judgment has left its mark. The court’s conclusion that a coal train and rail cars (i.e. rolling stock) traveling across numerous bodies of water can be a “discrete conveyance” and thus a point source so long as it can be shown that coal dust released from the train and coal cars was discharged into a waters of the United States is a significant finding. It reminds us to read each word of the statutory definitions regardless of a history that seemingly looked past some terms. Further, this case may be a sign of citizen suits to come pursuant to the CWA as citizen groups will not be deterred by the lack of preclusive effect from this case. The partial roadmap laid out for citizen groups in the Sierra Club v. BNSF case can be replicated across the country and be played against various industries, leading to potentially far-reaching implications for all “discrete conveyances” as interpreted pursuant to the CWA.

1. No. 13-cv-967-JCC (W.D. Wash. filed June 4, 2013).
2. Third Amended Complaint at ¶48, Sierra Club v. BNSF Railway Co., No. 13-cv-967 (W.D. Wash. May 6, 2015).
3. Energy in Brief: What is the role of coal in the United States?, U.S. Energy Information Administration, www.eia.gov/energy_in_brief/article/role_coal_us.cfm (last updated Jan. 19, 2016).
4. Id.
5. Coal may surpass natural gas as most common electricity generation fuel this winter, U.S. Energy Information Administration (Nov. 18, 2016), www.eia.gov/todayinenergy/detail.php?id=28832.
6. Oklahoma Coal, Oklahoma Dept. of Mines, apps.ok.gov/mines/Coal_Program/Oklahoma_Coal/index.html (last updated Oct. 7, 2015).
7. Oklahoma: State Profile and Energy Estimates, U.S. Energy Information Administration, www.eia.gov/state/rankings/?sid=OK#series/48 (last visited Jan. 30, 2017).
8. State Electricity Profiles: Oklahoma – Table 2-A, U.S. Energy Information Administration (Jan. 17, 2017), www.eia.gov/electricity/state/Oklahoma/.
9. James A. Luppens, et al., Professional Paper 1809 - Coal Geology and Assessment of Coal Resources and Reserves in the Powder River Basin, Wyoming and Montana, United States Geological Survey 1 (2015).
10. Quarterly coal production lowest since the early 1980s, U.S. Energy Information Administration (June 10, 2016), www.eia.gov/todayin energy/detail.php?id=26612.
11. Coal Explained: Coal Mining and Transportation, U.S. Energy Information Administration, www.eia.gov/energyexplained/index.cfm? page=coal_mining (last updated Sept. 7, 2016).
12. Roderick J. Hossfeld and Rod Hatt, PRB Coal Degradation – Causes and Cures 3, Paper for PRB Coal Users’ Group Annual Meeting, 2005.
13. Frequently Asked Questions, BNSF Railway, www.bnsf.com/
customers/what-can-i-ship/coal/coal-dust.html
(last visited Jan. 30, 2017).
14. Id.
15. Beyond Coal, About Us, Sierra Club, content.sierraclub.org/coal/about-the-campaign (last visited Jan. 30, 2017).
16. Id.
17. Id.
18. Press Release, Sierra Club, BNSF Railways, Coal Shippers Sued in Federal Court for Water Contamination Violations (June 5, 2013), available at content.sierraclub.org/press-releases/2013/06/bnsf-railways-coal-shippers-sued-federal-court-water-contamination-violations.
19. US coal export terminals, S&P Global Platts, www.platts.com/news-feature/2012/coal/coalexports/map (last visited Jan. 30, 2017).
20. The Centralia power plant in southwestern Washington is the only remaining coal-fired power plant in the state of Washington.  However, TransAlta, the owner of the plant, reached an agreement with the state of Washington to convert to natural gas by the year 2025.  See Mike Lindblom and Craig Welch, “Agreement reached to stop burning coal at Centralia power plant,” Seattle Times (Mar. 5, 2011), www.seattletimes.com/seattle-news/agreement-reached-to-stop-burning-coal-at-centralia-power-plant/.
21. Press Release, U.S. Army Corps of Engineers, Army Corps halts Gateway Pacific Terminal permitting process (May 9, 2016), available at www.nws.usace.army.mil/Media/News-Releases/Article/754951/army-corps-halts-gateway-pacific-terminal-permitting-process/.
22. Millennium Bulk Terminals-Longview NEPA/SEPA Environmental Impact Statements, Millennium Terminals, www.millennium bulkeiswa.gov/ (last visited Jan. 30, 2017).
23. CWA s. 101, 33 U.S.C. §1251.
24. CWA s. 301, 33 U.S.C. §1311(a); CWA s. 402, 33 U.S.C. §1342; 40 CFR §§122.1 et seq.
25. CWA s. 502 33 U.S.C. §1362; CWA s. 402, 33 U.S.C. §1342(a); 40 CFR §122.1.
26. 33 U.S.C. §1365(a).
27. 33 U.S.C. §1365(b).
28. See, e.g., Karr v. Hefner, 475 F.3d 1192 (10th Cir. 2007); see also Donald D.J. Stack et al., “Follow the Yellow Brick Road: Citizen’s Suits - Notice and Standing and Filing Oh My!” 13-15 (Jan. 2009), available at www.stackenvirolaw.com/Publications/Land-Use-Conference-CWA-Citizen-Suit.pdf.  
29. Notice of Intent to Sue Under s. 505 of the Federal Water Pollution Control Act 1-2 (Apr. 2, 2013), available at www.westernlaw.org/sites/default/files/60%20Day%20Notice%20Letter.pdf.
30. Id. at 3.
31. Id.
32. As to standing, BNSF argued that plaintiffs had standing for only six waterways and not all waterways in Washington that BNSF trains pass over and alongside. (Motion for Summary Judgment by Defendant BNSF Rwy. at 14, Sierra Club v. BNSF, No. 13-cv-967 (W.D. Wash. Aug. 19, 2016)). Plaintiffs did not dispute that they could not provide witnesses to show standing for each and every waterway. Instead, plaintiffs asked the court to find standing for all waterways by following the holding of Alaska Center for Environment v. Browner, 20 F.3d 981 (9th Cir. 1994).  In that case, the 9th Circuit held that a “plaintiff seeking state-wide environmental relief was not required to demonstrate harm over the entire state but was only required to establish a representative number of areas adversely affected.” (Order Denying Plaintiffs’ and Defendant’s Motions for Summary Judgment at 6, Sierra Club v. BNSF, No. 13-cv-967 (W.D. Wash. Oct. 25, 2016). The court agreed with plaintiffs and adopted the 9th Circuit’s holding. Further, BNSF made two concessions: 1) that plaintiffs had provided witnesses to show standing for the two main receiving waters – the Columbia River and Puget Sound – and 2) that “many of the waterways for which plaintiffs have not identified standing witnesses are tributaries, hydrologically connected waterways, or have a significant nexus with waterways for which Plaintiffs have identified standing witnesses.”  Id. at 12.
33. 33 U.S.C. §§1331(a), 1342.
34. Order Denying Plaintiffs’ and Defendant’s Motions for Summary Judgment at 15, Sierra Club v. BNSF, No. 13-cv-967 (W.D. Wash. Oct. 25, 2016) (quoting Trustees for Alaska v. EPA, 749 F.2d 549, 558 (9th Cir. 1984)).
35. Id. (citing League of Wilderness Defs./Blue Mountains Biodiversity Project v. Forsgren, 309 F.3d 1181 (9th Cir. 2002)).
36. Id. at 14. The phrase rolling stock is not commonly used today. “Rolling stock” is traditionally defined as “the wheeled vehicles of a railroad, including locomotives, freight cars, and passenger cars.” www.dictionary.com/browse/rolling-stock. However, current U.S. Department of Transportation regulations provide a more expansive definition: “Rolling stock means transit vehicles such as buses, vans, cars, railcars, locomotives, trolley cars and buses, and ferry boats, as well as vehicles used for support services.” 49 C.F.R. §661.3.
37. Order Denying Plaintiffs’ and Defendant’s Motions for Summary Judgment at 16, Sierra Club v. BNSF, No. 13-cv-967 (W.D. Wash. Oct. 25, 2016).
38. Id. (quoting Motion for Summary Judgment by Defendant BNSF Rwy. at 28, Sierra Club v. BNSF, No. 13-cv-967 (W.D. Wash. Aug. 19, 2016)).  
39. Id.
40. Id.
41. Id. at 17.
42. 309 F.3d 1181 (9th Cir. 2002).
43. Id. at 1185.
44. Cordiano v. Metacon Gun Club, Inc., 575 F.3d 199 (2d Cir. 2009); Alaska Cmty. Action on Toxics v. Aurora Energy Servs., LLC, 940 F. Supp. 2d 1005, 1024 (D. Alaska 2013).
45. Order Denying Plaintiffs’ and Defendant’s Motions for Summary Judgment at 18, Sierra Club v. BNSF, No. 13-cv-967 (W.D. Wash. Oct. 25, 2016).
46. Id. at 20.
47. Id.
48. Press Release, Puget Soundkeeper, BNSF Railway required to address coal train pollution (Nov. 15, 2016), www.pugetsoundkeeper.org/2016/11/15/bnsf-railway-required-address-coal-train-pollution/.
49. Order Denying Plaintiffs’ and Defendant’s Motions for Summary Judgment at 20, Sierra Club v. BNSF, No. 13-cv-967 (W.D. Wash. Oct. 25, 2016).
50. Riggio v. Serv. Corp. Int’l, 476 F. App’x 135, 136 (9th Cir. 2012) (stating that “an interlocutory order . . . — absent certification under Rule 54(b) — was not yet entitled to res judicata effect”); see also St. Paul Fire & Marine Ins. Co. v. F.H., 55 F.3d 1420, 1425 (9th Cir. 1995); Avondale Shipyards, Inc. v. Insured Lloyd’s, 786 F.2d 1265, 1270 (5th Cir. 1986) (noting that “partial summary judgment orders lack the finality necessary for preclusion”).
51. Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133 (10th Cir. 2005).
52. Courts have found vehicles such as bulldozers and backhoes to be point sources when collecting piles of material that ultimately found its way back into the waters. Avoyelles Sportmen’s League v. Marsh, 713 F.2d 897, 922 (M.D. Fla. 1974). Even Navy aircraft dropping ordinance into coastal waters during bombing practice were point sources. Barcelo v. Brown, 478 F. Supp. 646, 664 (D.P.R. 1979). However, these are instances where a vehicle was acting as a point source and discharging into a single body of water.  Here, the train crossed more than 50 bodies of water in Washington on a single trip.
53. Generally speaking, the lawsuits have been consolidated in the 6th Circuit and oral arguments are scheduled for March 29, 2017. Murray Energy Corp. v. U.S. Department of Defense, 817 F.3d 261 (6th Cir. Feb. 22, 2016).
54. On Jan. 13, 2017, the Supreme Court granted a writ of certiorari in National Association of Homebuilders v. Department of Defense, cert. granted, No. 16-299, (U.S. Jan. 13, 2017).  The Supreme Court will review the decision by the 6th Circuit U.S. Court of Appeals to assert jurisdiction over the lawsuits challenging the Clean Water Rule. The 6th Circuit granted a motion to hold in abeyance its decision on the regulation until the Supreme Court rules on the jurisdictional issues. Murray Energy v. EPA, No. 15-3751 (6th Cir. Jan. 25, 2017) (order granting motion to hold briefing in abeyance).
55. “Significant nexus” arose from Justice Kennedy’s concurring opinion in Rapanos v. United States, 547 U.S. 715 (2006). Justice Kennedy wrote that the scope of the CWA’s jurisdiction extends to bodies of water that have a “significant nexus” to a traditional navigable waterway. He concluded that “wetlands possess the requisite nexus, and thus come within the statutory phrase ‘navigable waters,’ if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of” downstream navigable waterways.
56. Clean Water Rule: Definition of “Waters of the United States,” 80 Fed. Red. 37,054, 37,071 (June 29, 2015).  
57. An America First Energy Plan, The White House, www.white house.gov/america-first-energy (last visited Jan. 31, 2017).
58. Id.
59. See, e.g., U.S. Army Corps of Engineers v. Hawkes Co., Inc., 136 S. Ct. 1807 (2016); Sackett v. EPA, 566 U.S. 120 (2012).


ABOUT THE AUTHOR
Erin Potter Sullenger is an associate at Crowe & Dunlevy and a member of the firm’s Environmental, Energy & Natural Resources Practice Group. Her practice involves a variety of environmental and energy regulatory and litigation matters, but primarily focuses on air, water and waste regulations. She graduated from the TU College of Law with highest honors, holds a Master’s Degree from University of Virginia and serves as vice chair of the Special Committee for the ABA SEER’s Year in Review.


Originally published in the Oklahoma Bar Journal -- OBJ 88 pg. 297 (Feb. 11, 2017)

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