DOJ and Pipeline Operator spar over the proper way to calculate a Clean Water Act penalty

On October 8, 2014, the U.S. Department of Justice (the “DOJ”) filed a motion regarding the proper way to calculate a Clean Water Act (“CWA”) penalty.  The dispute turns on whether the penalty for a prohibited discharge of oil should be based simply on the amount of oil discharged or instead on the amount of discharged oil that makes its way into a navigable body of water.  In its motion, the DOJ argues that the plain language of the CWA calls for penalties based on the amount of oil “discharged” without any requirement that the oil reach a navigable body of water.  The pipeline operator has previously argued in court filings that such a measure improperly extends the CWA beyond its terms and would represent a Congressional overstep of the Federal government’s Commerce Clause authority.

While at its heart the dispute is a matter of statutory interpretation and constitutional law, its result may well have major impacts on the rest of the litigation.  If the court determines that the DOJ’s reading of the CWA is correct, proving the amount of oil discharged may not be too complicated.  The DOJ could prove the amount by, for example, showing the volume of oil pumped into the pipeline and the volume of oil that reached its intended destination, with the difference approximating the amount of oil discharged.  However, if the court follows the pipeline operator’s reading of the CWA, the DOJ will likely be presented with significant evidentiary challenges, because once the oil was discharged, it likely dispersed in complex, difficult-to-track ways.

The dispute is currently before the U.S. District Court for the Eastern District of Arkansas.

This post was written by Barclay Nicholson ( or 713 651 3662) and Jim Hartle ( or 713 651 5695) from Norton Rose Fulbright's Energy Practice Group.