President's Message

Energy Law Journal, July 1, 2019 | Go to article overview

President's Message


The Energy Law Journal (ELJ) has given the Energy Bar Association (ЕВА) much to be proud of since the first issue in 1980. The ELJ is peer reviewed by some of EBA's preeminent practitioners, articles are screened by professionals interested in ensuring timeliness and relevance to energy practice, and we rarely get the law wrong. In all of this,1 the ELJ distinguishes itself from the pack.

For this accomplishment, we have the hard work, dedication, and talent of the ELJs Editorial Board, working with the support of the members of the Board of the Foundation for the Energy Law Journal (FÉLJ). Newly minted (though not so new) Editor-in-Chief, Harvey Reiter, is ably assisted by Executive Editor Caileen Gamache, Administrative Editor, Nicholas Cicale, and a raft of talented Articles and Notes editors. Harvey served as Executive Articles Editor for many years, working with Bob Fleishman, to whom we owe great thanks for his many years of service at the helm. Old ЕВА hands (a group in which I may be included) will count all of these terrific people as friends and peers who do us proud.

This issue continues our long tradition of timely, expert pieces, including David Savitski's "LMPs for (Technically-Inclined) Dummies," Christine Tezak's "А Policy Analyst's View on Litigation Risk Facing Natural Gas Pipelines," and "Risk-Based v. Compliance-Based Utility Cybersecurity-А False Dichotomy?" by Wei Chen Lin and Dominic Saebeler. We are also pleased to publish expert reports from EBA's Environmental Regulation Committee, the FÉRC Practice Committee, the Natural Gas Committee, the Oil and Liquids Committee, the Power Generation and Marketing Subcommittee, the State Practice Committee, and the System Reliability, Planning, and Security Committee. These reports are detailed, expert, and an enormous help to practitioners as a research tool. We give the Committees our thanks for what we know is their dedication and painstaking work.

The EBA Board is excited about the many initiatives we have launched this year, including our rededication to working more closely with our government employee members, our revitalized effort to serve in-house counsel members, and an ongoing effort, organized through the leadership of FÉLJ President Nick Pascale, to launch a new magazine-style on-line publication addressing issues of the day, EBA Brief. In this, we are temporary stewards of EBA's trust. ЕВА endures and thrives through the thoughtful, long-term dedication of members such as those devoted to the ELJ.

Yours,

/s/

Jonathan D. Schneider

President, Energy Bar Association

UPSTATE FOREVER V. KINDER MORGAN: NAVIGATING THE INTERPRETATION OF "DISCHARGE OF POLLUTANT" TO THE SUPREME COURT

I. INTRODUCTION

The purpose of the Clean Water Act (CWA) is to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters."1 The CWA protects the Nation's waters by utilizing a complex statutory scheme with multi-ple enforcement provisions, including authorizing citizens to file suit against persons alleged to be violating the CWA.2 A violation of the CWA requires a "discharge of pollutant" from a "point source" without a permit and such violation must be "continuous or intermittent" for the citizen-suit provision to apply.3 However, not all Federal courts have interpreted this provision of the CWA in the same way.

For example, in Upstate Forever v. Kinder Morgan (Upstate), the United States Court of Appeals for the Fourth Circuit considered whether a discharge of a pollutant without a permit from a point source into groundwater that subsequently migrates to navigable waters is a violation of the CWA. The Fourth Circuit also considered whether an ongoing violation of the CWA is present when a point source no longer discharges pollutants but pollutants previously discharged migrate to navigable waters.4 The plaintiffs in Upstate filed a citizen-suit alleging the defendants discharged pollutants into navigable waters without a permit in violation of the CWA. …

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