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Attorneys General: Don’t Water Down the Clean Water Act

AGs add their voice to major coal ash case now before the 6th Circuit Court of Appeals

March 23, 2018
Contact: stateimpactcenter@nyu.edu

Washington, D.C.— Maryland Attorney General Brian Frosh is leading a coalition of four states in fighting efforts to roll back the federal government’s obligation to ensure clean water under the Clean Water Act (CWA). In an amicus brief filed last night in Tennessee Clean Water Network v. Tennessee Valley Authority, the attorneys general expressed support for the lower court’s decision, which found that the Tennessee Valley Authority (TVA) violated the CWA and exposed residents and the environment to toxic substances in coal ash – a byproduct of burning coal – that include chromium, arsenic, lead, aluminum, boron, iron, sulfate, selenium and manganese.

The amicus brief responds to troubling arguments pushed by a separate coalition of state attorneys general and the U.S. Chamber of Commerce, among other business groups, that seek to overturn a long line of cases that confirm the CWA applies when pollutants reach surface waters, such as the Cumberland River, through a short and direct groundwater connection. The case is before the Sixth Circuit Court of Appeals.

“Reversal of the district court’s decision, or embrace of the arguments made by the Tennessee Valley Authority and its amici concerning the scope of the Clean Water Act’s prohibition on unauthorized point source discharges into navigable waters, would threaten the Act’s proper application and give polluters an incentive to skirt regulation by rerouting discharges to nearby groundwater,” wrote the attorneys general in the amicus brief. “Amici therefore file this brief to urge the Court to uphold the district court’s decision that the Act prohibits unauthorized point source discharges to navigable waters via a direct and immediate groundwater connection.”

“A negative decision in this case would dramatically roll back Clean Water Act protections,” said David J. Hayes, executive director of the State Energy & Environmental Impact Center. “State attorneys general, led by Maryland’s Brian Frosh, are fighting to uphold the law, protect the environment and keep toxic chemicals out of people’s sinks and showers.”

In addition to Maryland Attorney General Frosh, attorneys general from the following states joined in filing the amicus brief: California, Massachusetts and Washington.


For decades, the TVA has violated the Clean Water Act at its Gallatin Fossil Plant in Tennessee by discharging pollutants from unlined coal ash impoundments via a short, direct groundwater pathway into the Cumberland River.

The Southern Environmental Law Center initiated a Clean Water Act citizen suit against TVA for its ongoing violation of the CWA. Evidence presented at trial proved that heavy metals and other toxic pollutants have migrated, and are continuing to migrate, from leaking, unlined coal ash impoundments into the river.

The Maryland and other attorneys general’s defense of CWA jurisdiction in this case is particularly important given that:

  1. Similar CWA coal ash cases involving contamination of important waterways are underway in other circuits;
  2. EPA has recently confirmed that scores of unlined coal ash impoundments are leaking and contaminating water supplies all around the country;
  3. EPA Administrator Scott Pruitt has initiated a review of EPA’s CWA permitting guidance, with the apparent intent of withdrawing National Pollutant Discharge Elimination System permitting requirements in situations such as those presented in the TVA case; and
  4. EPA has initiated one of two expected rulemakings to roll back monitoring and corrective action requirements that are now in place to address leaking coal ash impoundments under the Resource Conservation and Recovery Act.  

A February 2018 State Energy & Environmental Impact Center report, “State Attorneys General: 13 Months of Critical Actions,” shows that state attorneys general have taken more than 80 actions to advance and defend progressive clean energy, climate and environmental laws and policies since January 2017.


ABOUT THE STATE ENERGY & ENVIRONMENTAL IMPACT CENTER: The State Energy & Environmental Impact Center is a non-partisan Center at the NYU School of Law that is dedicated to helping state attorneys general fight against regulatory rollbacks and advance clean energy, climate change, and environmental values and protections. It was launched in August 2017 with support from Bloomberg Philanthropies. For more information, visit http://www.law.nyu.edu/centers/state-impact.