Navigating a bend in environmental law, the U.S. Sixth Circuit Court of Appeals heard two water pollution cases on the same day.
In Kentucky Waterways Alliance v. Kentucky Utilities Co., environmental groups claim a utility company polluted Herrington Lake. In Tennessee Clean Water Network v. Tennessee Valley Authority, the plaintiffs say the defendant contaminated the Cumberland River.
Arguments in both matters turned on the question of "point source" pollution. It was a rare occasion when lawyers walked into court on separate cases but found themselves on the same page.
Point Source Pollution
In the Kentucky case, attorneys argued about ponds the utility made to capture coal ashes that settle from its smoke stacks. The plaintiffs said the contaminants got into the groundwater and went to the lake.
Judge Richard Suhrheinrich interrupted the arguments with a key question: Are ash ponds point sources under the Clean Water Act?
Arguing for the utility, attorney Paul Clement said they are "a classic example of non-point source pollution." He said not all man-made objects that create water pollution are covered by the Act.
Clement asked the appeals court to affirm the trial judge, who said the "regulation of groundwater should be left to the states." The judges then turned to the Tennessee matter.
Ash Pond Solution
David Ayliffe, representing the Tennessee Valley Authority, said he agreed with Clement in the previous case.
"Groundwater is non-point source pollution," Ayliffe said.
In his case, a judge ordered the defendant to close its ash pond and excavate. Ayliffe said that was an "extreme remedy," and that the defendant had successfully monitored pollution at its site for 30 years.