Drinkable Water is a Pollutant?: Northern Plains Resource Council v. Fidelity Exploration

By: Laura L. Mays, Former Staff Member; This Comment was originally published in JNREL Vol. 20 No. 1.

Abstract by: Andrew Leung, Staff Member

In deciding Northern Plains Resource Council v. Fidelity Exploration, 325 F.3d 1155 (9th Cir. 2003), the Ninth Circuit held that naturally occurring groundwater in an unaltered state is a pollutant under the Clean Water Act (CWA) and should be treated accordingly. "Drinkable Water is a Pollutant?: Northern Plains Resource Council v. Fidelity Exploration" examines the court's analysis and explains the probably harmful effects that this holding will have on the coal industry in the Commonwealth of Kentucky and the country at large.

The "pollutant" in question is groundwater removed from natural aquifers through the harvesting of Coal-Bed Methane (CBM). CBM is a naturally occurring deposit of methane that exists in situations where coal is saturated with groundwater, thus trapping methane inside the coal. When CBM deposits are tapped, the miners must also remove the groundwater deposits in order to achieve the ideal pressurization at the mining site.

In Fidelity Exploration, Fidelity Exploration and Development Company extracted CBM from the Powder River Basin in Montana for commercial sale. The groundwater that was brought to the surface was transported to and deposited in the nearby Tongue River. It should be noted that the dissolved solids level in the groundwater was nearly triple that of the river. When this fact was publicized, The Northern Plain Resource Council (NPRC) filed citizen suit in the District Court for the District of Montana. The district court granted summary judgment for Fidelity, but NPRC timely appealed to the Ninth Circuit.

The Clean Water Act proscribes that transport and discharge of a pollutant from a "point source" into "navigable waters" is unlawful. In the case at hand, the "point source" is the underground aquifer from which the CBM was harvested, and the "navigable wate[r]" is the Tongue River. Although defendant Fidelity noted that the water was disposed of in its natural state, the Ninth Circuit found that CBM water was "industrial water" because it was produced as a byproduct of an industrial activity. Ironically, the court conceded that the same water was generally potable, and could be used for agricultural means.

This holding effectively dissuades coal companies from exploiting the CBM deposits that often accompany the coal deposits that they already mine. By imposing this obstacle, coal companies are not likely to change their practice of allowing CBM to escape into the atmosphere, where it contributes to global warming. Fidelity Exploration serves as one of those rare instances where a strict protectionist approach to the environment via literal interpretation of statutes may actually serve to cause greater harm than good.