Lots going on with the coal export fight — here is a quick update:
Citizen Suit Update: On June 4th–the earliest possible date–the Sierra Club filed suit seeking to enforce the alleged violations of the Clean Water Act detailed in its notice letter sent to BNSF and others back in April. The case is before Judge Coughenour in the Western District of Washington. The complaint reiterates the allegations set forth in the 60-day notice letter, and includes–in addition to Burlington Northern–the coal producers (Cloud Peak Energy, Peabody Energy Corporation, Global Mining Holding Co., FirstEnergy Corp., and Ambre Energy North America). The coal producers were all included in the complaint under a theory that they all operate, direct, and control the loading of coal from mines into the rail cars. The Plaintiffs seem to be applying the rule articulated in Assateague Coastkeeper v. Alan and Kristin Hudson Farm, a 2010 District of Maryland decision that held poultry integrators could be liable for the Clean Water Act violations of concentrated animal feeding operations (CAFO) because the poultry integrators owned the chickens, provided the feed, fuel, litter, vaccinations, and other supplies used by the CAFO and therefore had sufficient control over the CAFO to prevent the alleged illegal discharges. I haven’t looked into this in detail, but it seems to me that the Plaintiffs have a tough road in terms of imposing liability on the coal producers. The standard I’d expect Judge Cougenour to eventually apply would be one similar to the Supreme Court’s standard for an “operator” of a polluting facility articulated in United States v. Bestfoods, 524 U.S.51 (1998), i.e., that the coal producers must “manage, direct or conduct operations specifically related” to the coal discharges from the rail cars. I’d expect this issue to be one of the first ones to be raised by the coal producer defendants in this litigation.
NEPA Scoping: This past week, Jennifer Moyer, Acting Chief of the Corps’ regulatory program, testified before the U.S. House of Representative’s Committee on Energy and Commerce, Subcommittee on Energy and Power. Her complete testimony is available here, and contains a good summary of the Corps’ regulatory authority and the Corps’ implementation of NEPA. Relevant to the coal export issue, the Corps has made a decision to review the three proposed coal export facilities separately under NEPA. The Corps has also made the decision not to consider issues such as rail traffic, coal mining, shipping outside of U.S. territory, and the ultimate burning of coal overseas in its EIS because those activities do not fall within the regulatory “control and responsibility” of the Corps.
Seattle Mayor McGinn Travels to D.C.: At the same hearing where Jennifer Moyer testified, Mayor Mike McGinn provided testimony against the proposed coal facilities. His testimony focused on the issues excluded from NEPA analysis by the Corps–namely rail traffic and coal dust emissions, coal mining, and impacts on greenhouse gas emissions. His testimony is a great summary of the myriad of concerns being raised by the anti-coal crowd.
On balance, I’d say this has been a good month for the coal terminal proponents. The litigation by the Sierra Club has the potential to drag on for a while. And, as I speculated earlier, the civil penalties that could be assessed if the Sierra Club is successful could be staggering. The scoping decision by the Corps is a “win” for the terminal proponents, and makes sense given NEPA caselaw, the Corps regulations, and the facts surrounding the projects. But, like everything else associated with these projects, I’d expect the Corps’ scoping decision to ultimately be reviewed by a Court.