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Energy and Environment Monitor

Fourth Circuit Follows Lead of Sixth Circuit: Citizen Groups Cannot Use SMCRA's Citizen Suit to Sue for Discharges Subject to Clean Water Act "Permit Shield"

April 6, 2021

By: Robert G. McLusky

The 4th Circuit has followed the 6th Circuit’s lead in extending the Clean Water Act (“CWA”) “permit shield” to citizen suits filed under the federal Surface Mining Control and Reclamation Act (“SMCRA”). In a case decided March 30th, the 4th Circuit said “we agree with the district court - and thus the [6th] Circuit in Sierra Club v. ICG Hazard, LLC, 781 F. 3d 281, 291-92(6th Cir. 2015) - that liability many not be imposed under the Surface Mining Act for a specific discharge when the Clean Water Act’s permit shield bars liability under the Clean Water Act for the same discharge. Southern Appalachian Mountain Stewards v. Red River Coal Company, Inc., No 19-2194 (4th Cir. 2021).

We have written about this case before - both when the district court in Virginia ruled originally and when the anti-mining group filed their final brief in the 4th Circuit. The CWA’s permit shield prevents citizen suits against NPDES permit holders that have submitted complete applications and where the discharges at issue were within the reasonable contemplation of NPDES permit writers - even if the permit does not expressly regulate the discharge. The 4th Circuit previously discussed the concept of the “permit shield” in SAMS v. A&G Coal. In the Red River case, the district court extended the permit shield to discharges from valley fills where the NPDES permitting authority had previously authorized Red River to remove its sediment ponds and drop or move the permitted outlets to another location - even though the fills continued to discharge elevated levels of dissolved solids that were adversely affecting aquatic life.  

To avoid the broad reading of the CWA permit shield by the district court, the SAMS relied on the citizen suit of SMCRA, claiming that the discharges were causing impacts prohibited under SMCRA as well as the CWA. SMCRA, however, prohibits any construction of the statute to “supersede, amend, modify, or repeal” the CWA. The 6th Circuit, in a case argued by Jackson Kelly, had previously ruled that this provision prohibits the use of SMCRA’s citizen suit to attack selenium discharges that were considered “permitted” under the CWA even when those discharges exceeded the applicable water quality standard. See Sierra Club v. ICG Hazard. In Red River, the 4th Circuit agreed, and ruled that the use of SMCRA to bypass the CWA permit shield was a prohibited “amendment” or “repeal” of the CWA permit shield even if the substantive SMCRA standards sought to be enforced are consistent with CWA standards. 

Here is a link to a thorough discussion of the topic of permit shields: 
http://media.straffordpub.com/products/navigating-the-clean-water-act-permit-shield-absent-clear-court-guidance-2015-06-16/presentation.pdf.

 

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