Court refuses to hear appeal on coal-bed pollution

Posted: Thursday, October 23, 2003

BILLINGS, Mont. The U.S. Supreme Court has declined to review an appeals court ruling that water released during coal-bed methane development is a pollutant under the federal Clean Water Act, an attorney said Monday.

The decision is ''very significant because it establishes, now and for all time, that coal-bed methane water is a pollutant and subject to regulation,'' said Jack Tuholske, an attorney for the Northern Plains Resource Council.

Fidelity Exploration and Production Co. had asked the court to overturn a ruling earlier this year by the 9th U.S. Circuit Court of Appeals that said coal-bed methane water is ''industrial waste'' and subject to regulation by the act.

Drilling for coal-bed methane involves the release of large amounts of groundwater to ease the pressure that holds the gas in coal seams.

Farmers and conservationists are among those who argue the water is often salty and that it can harm vegetation.

Northern Plains sued Fidelity in 2000, contending the energy development firm had illegally discharged water from its coal-bed methane operations in southeastern Montana into the Tongue River.

Fidelity has said it sought and obtained the proper permits to discharge water, even after the Montana Depart-ment of Environmental Quality said none were needed because state law exempts such discharges.

DEQ made clear, however, that the federal Environmental Protection Agency did not agree with the exception.

Last year a federal judge in Montana dismissed Northern Plains' case, ruling the water isn't a pollutant under the Clean Water Act and that its discharge does not require a permit under state law.

That ruling was overturned by the 9th Circuit.

Mike Caskey, Fidelity's executive vice president and chief operating officer, said the decision should not affect the way the company operates in Montana. Company officials ''felt we were always working under the correct guidelines under the law,'' he said.

Fidelity asked the supreme court to review the case, he said, out of concern that the decision might set a precedent that could have a ''huge impact'' on the industry's ability to explore and development coal-bed methane in the future.

Tuholske said he was surprised Fidelity took the case so far.

''I think, in doing so, they created further divisions between the industry and the irrigators,'' he said.

''They all know this stuff is a pollutant. Why drag it to the United States Supreme Court instead of moving on to ways to regulate and treat it?''

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