Standing may seem like an arcane concept, but, as lawyers, we know that this term has special legal meaning—and that it affects whether our clients or our clients’ opponents can successfully bring a lawsuit. Understanding standing is no easy task. In a decision by the DC Circuit last week, the Sierra Club was reminded just how important standing can be when challenging, or more to the point attempting to challenge, environmental laws, and the DC Circuit has not just singled out environmental groups in requiring a showing of standing.
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In a decision issued on April 12, 2018, a Fourth Circuit panel held (2-1) that (1) even though a pipeline leak has been repaired and remediation is ongoing under the supervision of the state environmental agency, environmental groups have standing to sue the pipeline owner, and (2) plaintiffs’ allegation that groundwater continues to carry discharged pollutants to jurisdictional waters through a “direct hydrological connection” supports liability under the Clean Water Act.
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In April 2015, EPA issued a final rule governing the control and management of coal combustion residuals (CCR) in surface impoundments used to treat those residuals. As part of its rule, EPA required operators to submit initial closure plans for impoundments and post them on a publicly available website in November 2016. These initial closure plans must contain information related to the method of closure, and are subject to change as operators gather additional information. In June 2017, the Roanoke River Basin Association filed the first ever citizen suit under the CCR Rule.
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