U.S. Court of Appeals for the Sixth Circuit

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January 27, 2015

The U.S. Court of Appeals for the Sixth Circuit upheld 2-1 the dismissal of a lawsuit brought by the Sierra Club alleging that a mining company discharged selenium into Kentucky creeks in violation of the Clean Water Act. The federal district court dismissed the lawsuit, holding that the mining company was free from liability because the company was compliant with the terms of its general discharge permit, and because the permit “reasonably contemplated” selenium discharges when it was issued, even if it did not establish specific limitations on selenium discharges

U.S. Chamber argues CWA permit shield applies to both general and specific permits

May 01, 2013

The U.S. Chamber urged the Sixth Circuit to affirm the decision of the district court, which granted the defendant company's motion for summary judgment. This case involves a challenge brought by the Sierra Club to the defendant’s coal mining operations for allegedly unlawful discharges in violation of the Clean Water Act (CWA) and/or the Surface Mining Control and Reclamation Act (SMCRA). The lawsuit, brought under the CWA and SMCRA citizen suit provisions, alleges that the discharges are not authorized by the company’s general National Pollutant Discharge Elimination System (NPDES) permit. The Chamber argued in its amicus brief that compliance with a permit shields a permittee from CWA liability and that the permit shield applies equally to general permits and individual permits. The Chamber pointed out that any contrary reading of the CWA would have serious legal and economic consequences.

Karma Brown and Karen Bennett of the law firm Hunton & Williams LLP served as the Litigation Center's co-counsel on the brief.

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

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