Utilities Win Pole Regulation CaseBy Steven Johnson | ECT Staff Writer Published: April 4th, 2013
A federal appeals court has handed electric utilities an important victory, dismissing a lawsuit that sought to bring tens of millions of utility poles under environmental regulations.
A three-judge panel of the U.S. Circuit Court of Appeals for the 9th Circuit upheld a lower court decision, rejecting a claim that poles should be regulated because storm water washes chemical preservatives from them into nearby bodies of water.
“The panel affirmed dismissal of a citizen suit alleging that utility poles discharged wood preservative into the environment in violation of the Clean Water Act and the Resource Conservation and Recovery Act,” the court said April 3 in a 37-page ruling.
The Ecological Rights Foundation, a California-based environmental group, initially filed suit against Pacific Gas & Electric and Pacific Bell in 2009. A U.S. district court sided with the utilities in 2011, leading to the appeals court decision.
“We are pleased at the common-sense decision issued by the appeals court. Requiring wood poles to be regulated under federal water and waste laws would have been time consuming, costly and completely unnecessary,” said NRECA CEO Jo Ann Emerson.
In conjunction with other trade groups, NRECA filed a brief in the case, saying that utility poles treated with preservatives did not constitute a “point source” that conveys pollutants under the meaning of the Clean Water Act.
Electric cooperatives own and maintain about 40 percent of the 37 million poles nationwide. Subjecting them to federal permitting and compliance standards would have created an administrative nightmare and had implications for the affordability of electricity, NRECA added.
At issue were poles treated with pentacholorophenol. The Ecological Rights Foundation said rainwater transferred the preservative into the San Francisco Bay, its tributaries and adjacent wetlands.
The appeals court said the foundation failed to prove utility poles are point sources, which are constructed for the express purpose of storing pollutants or moving them from one place to another, among other definitions.
“Solid wood utility poles are none of these things,” it said.
In addition to being law in the 9th Circuit, the decision carries considerable weight throughout the entire federal court system, legal analysts said.