Thursday, September 4, 2014
On September 3, the Ninth Circuit (Farris, Nelson, Nguyen) issued a decision in Alaska Community Action on Toxics v. Aurora Energy Services, No. 13-35709. The plaintiff environmental organization filed a Clean Water Act citizen suit against Alaska Railroad Corp. and Aurora Energy Services, alleging that the Seward Coal Loading Facility, owned by Alaska Railroad Corp. and operated by Aurora Energy Services, was spilling coal into Resurrection Bay in violation of the Act. The defendants claimed the spills were covered by the Multi-Sector General Permit for Stormwater Discharges Associated with Industrial Activity. The district court agreed with the defendants and entered summary judgment for them. The plaintiffs appealed, supported by the United States as amicus curiae. Numerous amici curiae, including the State of Alaska and agricultural, mining, petroleum, and railroad associations, filed briefs on the side of the defendants. The Ninth Circuit reversed. The court of appeals reasoned that, although the General Permit does authorize certain categories of non-stormwater discharges, the Seward Facility’s alleged discharges of coal into the Bay do not fall within any of the authorized categories.