U.S. Court of Appeals for the Ninth Circuit

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Ninth Circuit reverses district court ruling in important permit shield case

September 03, 2014

The Ninth Circuit reversed the grant of summary judgment to the defendants and remanded the case.

U.S. Chamber files amicus brief

June 23, 2014

In the coalition brief, the Chamber asked the Ninth Circuit to affirm the ruling of the district court which found that the permit shield of the Clean Water Act (CWA) applied, shielding Aurora Energy from liability holding that Aurora Energy properly complied with the express terms of its permit and the discharges at issue were adequately disclosed to, and reasonably contemplated by, the permitting authority during the permitting process. The brief argued that the district court properly dismissed ACAT’s claims and held that, in determining the applicability of the CWA’s permit shield, it is appropriate to review the “totality of the evidence” to conclude whether a permittee is shielded from liability for unpermitted discharges that were adequately disclosed and reasonably anticipated by the permitting authority. The district court’s decision is consistent with Congressional intent, the CWA, EPA’s Policy Statement, and all other federal decisions on this issue. The Chamber pointed out that if the district court’s decision is overturned, enormous regulatory burdens, costs and uncertainty could be imposed on, or borne by, federal and state permitting agencies and the regulated community. Uncertainty regarding NPDES permit protections could translate into less investment in future or expanded enterprises, lost jobs, and slower growth throughout the country.

Karma B. Brown and Karen C. Bennet of Hunton & Williams LLP represented the U.S. Chamber as co-counsel to the National Chamber Litigation Center in this case.

The Chamber filed this brief jointly with the American Farm Bureau Federation, American Forest & Paper Association, American Petroleum Institute, CropLife America, National Association of Home Builders, and Utility Water Act Group.

Case Documents