No. 17-1640.

887 F.3d 637 (2018)

UPSTATE FOREVER; Savannah Riverkeeper, Plaintiffs-Appellants, v. KINDER MORGAN ENERGY PARTNERS, L.P.; Plantation Pipe Line Company, Inc., Defendants-Appellees. Anderson County, South Carolina; Pipeline Safety Trust, Amici Supporting Appellant, American Petroleum Institute; Association of Oil Pipe Lines; GPA Midstream Association; Texas Pipeline Association; National Association of Counties; National League of Cities; National Association of Clean Water Agencies; American Forest and Paper Association; American Iron and Steel Institute; Edison Electric Institute; National Mining Association; Utility Water Act Group; State of West Virginia; State of South Carolina; State of Alabama; State of Arkansas; State of Indiana; State of Kansas; State of Louisiana; State of Missouri; State of Oklahoma; State of Utah; State of Wisconsin; Governor Phil Bryant, Amici Supporting Appellee.

United States Court of Appeals, Fourth Circuit.

Decided: April 12, 2018.

Attorney(s) appearing for the Case

ARGUED: Frank S. Holleman, III , SOUTHERN ENVIRONMENTAL LAW CENTER, Chapel Hill, North Carolina, for Appellants. James P. Cooney, III , WOMBLE BOND DICKINSON (US) LLP, Charlotte, North Carolina, for Appellees. ON BRIEF: Christopher K. DeScherer , SOUTHERN ENVIRONMENTAL LAW CENTER, Charleston, South Carolina, for Appellants. Richard E. Morton , Todd W. Billmire , Jackson R. Price , Charlotte, North Carolina; Clayton M. Custer , WOMBLE CARLYLE SANDRIDGE & RICE, LLP, Greenville, South Carolina, for Appellees. Catherine H. McElveen , RICHARDSON, PATRICK, WESTBROOK & BRICKMAN, LLC, Mount Pleasant, South Carolina, for Amicus Pipeline Safety Trust. Leon C. Harmon , Anderson, South Carolina, for Amicus Anderson County, South Carolina. Alan Wilson , Attorney General, Robert Cook , Solicitor General, J. Emory Smith, Jr. , Deputy Solicitor General, OFFICE OF THE ATTORNEY GENERAL, Columbia, South Carolina, for Amicus State of South Carolina. Patrick Morrisey , Attorney General, Thomas M. Johnson, Jr. , Deputy Solicitor General, John S. Gray , Deputy Attorney General, Charleston, West Virginia, for Amicus State of West Virginia. Steve Marshall , Attorney General, OFFICE OF THE ATTORNEY GENERAL OF ALABAMA, Montgomery, Alabama, for Amicus State of Alabama. Leslie Rutledge , Attorney General, OFFICE OF THE ATTORNEY GENERAL OF ARKANSAS, Little Rock, Arkansas, for Amicus State of Arkansas. Curtis T. Hill, Jr. , Attorney General, OFFICE OF THE ATTORNEY GENERAL OF INDIANA, Indianapolis, Indiana, for Amicus State of Indiana. Derek Schmidt , Attorney General, OFFICE OF THE ATTORNEY GENERAL OF KANSAS, Topeka, Kansas, for Amicus State of Kansas. Jeff Landry , Attorney General, OFFICE OF THE ATTORNEY GENERAL OF LOUISIANA, Baton Rouge, Louisiana, for Amicus State of Louisiana. Joshua D. Hawley , Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MISSOURI, Jefferson City, Missouri, for Amicus State of Missouri. Mike Hunter , Attorney General, OFFICE OF THE ATTORNEY GENERAL OF OKLAHOMA, Oklahoma City, Oklahoma, for Amicus State of Oklahoma. Sean D. Reyes , Attorney General, OFFICE OF THE ATTORNEY GENERAL OF UTAH, Salt Lake City, Utah, for Amicus State of Utah. Brad Schimel , Attorney General, WISCONSIN DEPARTMENT OF JUSTICE, Madison, Wisconsin, for Amicus State of Wisconsin. Samuel L. Brown , HUNTON & WILLIAMS LLP, San Francisco, California; Nash E. Long, III , Brent A. Rosser , HUNTON & WILLIAMS LLP, Charlotte, North Carolina; Michael R. Shebelskie , HUNTON & WILLIAMS LLP, Richmond, Virginia, for Amici National Association of Counties, National League of Cities, National Association of Clean Water Agencies, American Forest and Paper Association, American Iron and Steel Institute, Edison Electric Institute, National Mining Association, and Utility Water Act Group. David H. Coburn , Cynthia L. Taub , STEPTOE & JOHNSON LLP, Washington, D.C., for Amici American Petroleum Institute, Association of Oil Pipe Lines, GPA Midstream Association, and Texas Pipeline Association.

Vacated and remanded by published opinion. Judge Keenan wrote the majority opinion, in which Chief Judge Gregory joined. Judge Floyd wrote a dissenting opinion.

In late 2014, several hundred thousand gallons of gasoline spilled from a rupture in a pipeline owned by Plantation Pipe Line Company, Inc., a subsidiary of Kinder Morgan Energy Partners, LP (collectively, Kinder Morgan), near Belton, South Carolina. It is undisputed that the gasoline has seeped into nearby...


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