While it may not be the "major victory" that environmental groups are trumpeting in their press release, the Thursday, Jan. 2 ruling by a Yakima federal judge certainly avoids a major defeat in their lawsuit targeting coal dust emissions from BNSF rail cars rolling through Washington state.
Lonny Suko, Senior U.S. District Judge, denied a motion to dismiss the July 24, 2013 lawsuit filed against BNSF by a coalition of environmental groups, including the Sierra Club and Bellingham-based Re Sources for Sustainable Communities . The lawsuit charged that BNSF coal trains were discharging coal dust into Washington waterways. Those discharges are a violation of the Clean Water Act because the railroad has no permit for them as the act requires, the lawsuit says.
Attorneys for the railroad had argued that the lawsuit should be dismissed. While they did not deny that coal dust finds its way from passing trains into waterways, they compared the resulting pollution to rain washing oil and tire rubber deposits from parking lots into streams. They further argued that higher court rulings have found that this kind of pollution is legally defined as "non-point source pollution" because it does not come from "a discernible confined and discrete conveyance that transports the pollutants from land to water." Non-point source pollution is not subject to the Clean Water Act, the railroad attorneys said.
Judge Suko reviewed the case law and decided there were no grounds to slap down the environmentalists' legal arguments in the early going.
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"The Court therefore finds it necessary to allow plaintiffs the opportunity at this early juncture to develop facts that will allow their claims to either stand or fall, based on the statutory definition of a point source discharge," Suko's ruling says.
Crina Hoyer, ReSources executive director, hailed that ruling and contended that coal dust pollution could increase dramatically if the Gateway Pacific Terminal project is built to export coal from Cherry Point.
“This is a great win for the people of Whatcom and Skagit counties, and means this important Clean Water Act suit can move forward,” Hoyer said. “Each and every one of the coal trains currently passing through the area has the potential to pollute our waters with coal dust, as well as the ‘coal juice’ draining from the rail cars in rainy weather.”
“Each train travels the Skagit and Whatcom county shoreline, crossing our creeks and rivers on their way from the mines to the coal port in BC. Coal dust and effluent from these trains poison our waters with lead, arsenic, and mercury. Imagine the further impact if the coal port were to be built at Cherry Point,” Hoyer said.