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Science, Law & the Environment Emerging Topics in Environmental Law

Breaking: Judge Coughenour Denies BNSF’s Motion to Dismiss in Suit Alleging CWA Violations for Discharge of Coal from Trains

Posted in Clean Water Act, Emerging Policy, Natural Resources and Environment, Water Quality

Yesterday, Judge Coughenour denied BNSF’s motion to dismiss the lawsuit filed by various environmental groups under the Clean Water Act that alleges that BNSF has been discharging coal from rail cars without an NPDES permit. He did so without oral argument, finding that the 60 day notice letter sent by the plaintiffs to BNSF and others was sufficient, and that plaintiffs had established Article III standing to bring the suit.

BNSF had argued that the 60 day notice sent by the plaintiffs was not sufficiently detailed because it did not connect BNSF’s activities to any alleged discharge by date, location, and pollutant.  Instead, plaintiffs provided examples of a variety of pollutants, described general factors that might contribute to discharge, and identified 75 possible waters in Washington that might be affected, which, according to BNSF, left too many variables unknown to meet the “sufficient notice” requirement.  Judge Cougenour found that argument unpersuasive, noting that the notice letters here were  “sufficiently specific to inform [BNSF] about what it was doing wrong” inasmuch as plaintiffs identified a date range the violations are alleged to have occurred (2008 to the present), a location where the violations have occurred (any waters of the United States under or in proximity to rail lines); and the manner in which the violations allegedly occurred (spillage from rail cars).

Judge Coughenour also found that plaintiffs had — at the early stage of the case — established Article III standing, finding that plaintiffs had alleged facts sufficient to show an injury in fact (harm to recreational or aesthetic interests); causation of that injury in fact (alleged releases of coal from rail cars); and redressiblity (which BNSF did not challenge in its motion).

Finally, Judge Coughenour denied BNSF’s request to dismiss plaintiffs’ request for injunctive relief, which, if successful, could require BNSF to restore or remediate the allegedly impacted waterways.  BNSF argued that the requested relief was contrary to the plain language of the CWA, under which federal courts have limited power to issue injunctive relief.  In rejecting BNSF’s argument, Judge Coughenour sent a strong message the court’s authority might extend to “authorizing limited equitable measures that are reasonably calculated to remedy an established wrong,” potentially setting up the interesting factual question of what those “equitable measures” may be and how they would be put in place.