Is 'The Government Said I Could' A Civil Liability Defense?

Law360 (October 11, 2019, 1:50 PM EDT) -- Recently, the Western District of Virginia issued a decision in Southern Appalachian Mountain Stewards v. Red River Coal Co. Inc. finding that a mine operator was not liable under the federal Clean Water Act and other statutes for certain nonpermitted discharges, pursuant to the so-called “permit shield” defense under the CWA.[1]

At first blush, the decision appears to be a technical one under the federal water pollution laws, having nothing to do with tort law generally. But the court’s reasoning raises a deeper, more far-reaching question relevant to any business operating in a highly regulated space: When, if ever, can reliance...

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