In a Jan. 2, 2014 opinion the U.S. District Court for the Eastern District of Washington denied BNSF Railway’s motion to dismiss a case brought against it under the Clean Water Act (CWA) by seven environmental groups, led by the Sierra Club, concerning alleged discharges of coal dust and other coal materials to waters. As we previously informed you, as part of their coordinated effort to attempt to disrupt the construction of several proposed coal export facilities, the environmental groups brought suit against BNSF and several mining companies claiming that CWA National Pollutant Discharge Elimination System (NPDES) permits are required for every discharge of coal material from every rail car into any jurisdictional water or wetland during transit, despite the fact that the U.S. Environmental Protection Agency (EPA) has never required such permits. While the environmental groups voluntarily dismissed their case against the coal companies, they are continuing to pursue the charges against BNSF. Importantly, the district court’s ruling, while not making any findings as to the merits of the environmentalists’ claims, does provide a summary of certain relevant CWA cases that could provide insight into how it might rule on several of the substantive issues involved in the case.
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