OEC and Sierra Club Submit Amicus Brief in Supreme Court Case against Rover Pipeline

Emily Bacha, Vice President of Public Affairs, June 26, 2020

Columbus, OH — On Friday, June 19, the Ohio Environmental Council (OEC) and Sierra Club filed an amicus brief at the Ohio Supreme Court supporting the Ohio EPA’s authority to enforce water quality protection laws.

The case, State of Ohio ex rel. Dave Yost, Ohio Attorney General v. Rover Pipeline, LLC, stems from the construction of the Rover pipeline, a 700-mile fracked gas pipeline spanning 18 counties in Ohio as well as crossing portions of Michigan and West Virginia. Two lower courts ruled against the Ohio EPA’s ability to enforce against the pipeline’s many spills, suggesting the state took too long to approve Rover’s permit. The OEC and Sierra Club, however, see this as an incorrect reading of the Clean Water Act that impairs Ohio’s ability to regulate polluters. The Supreme Court of Ohio will have the final word.

“At a time when the U.S. EPA is loosening regulations and rolling back federal water quality protections with the Dirty Water Rule, we cannot allow the rights and ability for the state of Ohio to govern be undermined,” said Trent Dougherty, General Counsel of the Ohio Environmental Council.

After a lengthy back and forth with the Ohio EPA—common for large scale projects with the potential to impact miles of streams and acres of wetlands—the pipeline company obtained its necessary Clean Water Act certifications. However, shortly after approval and construction began, Rover racked up nearly 30 environmental violations, including a 2 million gallon spill of drilling mud laced with diesel fuel, into pristine wetlands in Stark County.

The Ohio EPA filed a complaint against Rover and its contractors in state court, alleging, among other claims, that the company violated Ohio’s prohibition against water pollution. In court, Rover and its contractors argued that the state waived Rover’s original request for certification—and therefore its authority—to enforce any laws or regulations to protect waters of our state because the Ohio EPA did not approve the request within a year. The Stark County Court of Common Pleas agreed with the pipeline company, and dismissed the state’s case. The State of Ohio appealed to the 5th District Court of Appeals to reverse the dismissal, which the court did not do.

In January 2020, the Ohio EPA and the Ohio Attorney General’s Office appealed this case to the Ohio Supreme Court. The OEC and Sierra Club filed in support of the state of Ohio, the Ohio EPA, and Ohio Attorney General because the lower court’s decision adversely impacts the ability for advocacy groups like OEC and Sierra Club to safeguard environmental protections in rule and law. It also adversely impacts our membership’s use and enjoyment of the waters of the state.

“The construction of the Rover Pipeline was just one disaster after another. We filed this amicus brief to ensure that Ohio has the tools to finally hold them accountable,” said Shelly Corbin, Sierra Club Beyond Dirty Fossil Fuels Campaign Representative in Ohio.

“We filed our friend of the court brief to make clear: this case is not merely about the Ohio EPA missing a deadline or one particular pipeline’s pollution. What hangs in the balance at the Court is whether the Ohio EPA can maintain its authority to protect this state’s water resources moving forward, or whether bad actors can skirt the law,” said Dougherty. “The negative implications of maintaining the lower court opinion will dramatically affect the wildlife and people of Ohio who depend on the waters of the state.”

To read the amicus brief filed by the OEC and Sierra Club, please click here.

Additional Information About the Case:

Companies that wish to construct fracked gas pipelines, like Rover and its contractors, must obtain a “certificate of public convenience and necessity” from the Federal Energy Regulatory Commission (“FERC”). Before FERC can issue its certificate, it must ensure that the pipeline will comply with all state, local, and federal requirements, including the Clean Water Act. Under Section 401 of the Clean Water Act, states must certify that any project capable of generating water pollution will comply with the requirements of the Clean Water Act. States are given “a reasonable period of time” to act on a request for a 401 certification, which the Clean Water Act defines as not more than one year. If a state does not act within that year, the 401 certification “shall be waived with respect to [the] Federal application.”
In November of 2015, Rover submitted its first application for a 401 certification. According to Rover’s initial 401 certification, the application was incomplete, but the Ohio EPA worked cooperatively with Rover to address the omissions and obtain any missing information. The agency deemed the application administratively complete as of August 9, 2016, and moved forward with the approval process. Before approval of that complete application, Rover submitted a revised 401 certification application on February 23, 2017. The Ohio EPA issued the certification immediately the following day.
The Ohio EPA filed a complaint against Rover and its contractors in state court, alleging it violated Ohio’s prohibition against water pollution. In court, Rover and its contractors argued that the State waived its ability to enforce its own water-pollution laws by waiting more than a year to rule on Rover’s original request for a 401 certification, and that the State’s waiver meant the pipeline was not bound by state laws prohibiting water pollution. The Stark County Court of Common Pleas agreed with the pipeline company, and dismissed the state’s case. The State of Ohio appealed the decision to dismiss to the 5th District Court of Appeals. Also like the trial court, the court of appeals determined that this waiver broadly prohibited the State from enforcing any of its water-pollution laws against Rover and Rover’s contractors.
Due to the importance for the future authority to protect Ohio’s waters, in January, 2020, the Ohio EPA and the Ohio Attorney General’s Office appealed this case to the Ohio Supreme Court.
After the briefs and reply briefs from the State of Ohio, Rover, Rover’s contractors, and Amicus Curiae like OEC and Sierra Club are filed over the next couple months, the Ohio Supreme Court will schedule oral arguments. Once the Justices hear directly from the parties during oral argument, they will decide the issue once and for all.

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