Members split over whether to settle before case reaches US Supreme Court
The Maui News, May 24, 2019
A Maui County Council committee deadlocked in a vote Thursday over whether to recommend a settlement in the long-standing injection well lawsuit against the county that is headed for the U.S. Supreme Court.
The vote to recommend the settlement and send it to the full council was 4-4, with Council Chairwoman Kelly King and members Keani Rawlins-Fernandez, Shane Sinenci and Tamara Paltin voting in favor. Members Riki Hokama, Yuki Lei Sugimura, Tasha Kama and Committee Chairman Mike Molina voted “no.” Member Alice Lee was absent and excused.
The Governance, Ethics and Transparency Committee also was deadlocked in deferring the resolution, which meant the matter was automatically deferred.
Molina said the committee will revisit the issue “at some point this year.”
The vote late Thursday afternoon came after the committee spent the whole day in executive session to discuss corporation counsel’s possible proposal for a settlement, along with legal strategy and a May 9 revised settlement offer by the plaintiffs in the case. Thursday’s meeting was continued from Monday, when the committee heard from county officials, the plaintiffs and testifiers on the matter.
The lawsuit stems from 2012, when Hawai’i Wildlife Fund, Surfrider Foundation, West Maui Preservation Association and Sierra Club-Maui Group filed a complaint against the county over the wells at the Lahaina Wastewater Reclamation Facility, saying the effluent was reaching the ocean and impacting coral reefs. In 2014, the U.S. District Court in Hawaii ruled that the county’s use of injection wells was a violation of the federal Clean Water Act.
The county appealed to the 9th U.S. Circuit Court of Appeals and lost in February 2018. The court denied the county’s request to reconsider the ruling in March 2018. Earlier this year, the U.S. Supreme Court agreed to hear the case after circuit courts around the country were split over the reach of the Clean Water Act. The court could hear the case as early as October.
Plaintiffs support a settlement, saying the county should focus on solutions. Recently, participants at a Democratic Party Convention on Maui unanimously adopted a resolution that the county withdraw its appeal. Supporters and even some council members are concerned that a ruling in the county’s favor — which they believe is likely given the current Supreme Court makeup — would decimate the Clean Water Act and leave Maui to blame.
But on the other side, county officials argue that if the 9th U.S. Circuit Court of Appeals’ ruling stands, it could leave the county open to other lawsuits against its other injection wells, possibly millions of dollars in fines and the need for millions of dollars for infrastructure work to remove the treated wastewater. County administrators told committee members that a Supreme Court ruling will bring clarity to the situation.
At the heart of the suit is the National Pollutant Discharge Elimination System permit, which the county does not have. For the injection wells, the county has an Underground Injection Control permit issued by the Safe Drinking Water Branch of the state Department of Health, the county said in 2016.
The county applied for the NPDES permit several years ago after the court denied a motion to dismiss the lawsuit, officials said at the time.
The NPDES permits are currently pending before the state Department of Health.
County officials said the 9th Circuit’s decision put injection wells under the Clean Water Act, and they questioned what it would do to all of the other categories under the Federal Safe Drinking Water Act, which include cesspools/septic tanks and R-1 (treated recycled water) irrigation.
Council members, including Rawlins-Fernandez, challenged county officials on their claims that the state DOH would go after individual cesspool owners if the 9th Circuit ruling stands, noting the limited number of staff.
There are approximately 88,000 cesspools in use in the state, with nearly 50,000 on the Big Island, almost 14,000 on Kauai, over 12,000 on Maui, over 11,000 on Oahu and over 1,400 on Molokai, according to the state Department of Health, Wastewater Branch website.
In voting in favor of the resolution to authorize settlement, King said the county needs to “look at what we can do here to fix our problems at home, and look at how our decisions are affecting the environment across the country.”
She later added that if the resolution were to pass out of committee, she would make every effort to get the state Department of Health to confirm in writing what the council has been hearing — that the department will not enforce the law against cesspools if the matter is settled.
Rawlins-Fernandez refuted county officials claims that settling the matter “would spur more suits.”
She pointed to a legal case against the county’s Kihei injection wells in which she said the client, Puko’a O Kama, is willing to settle.
“The county should end the costly and seemingly endless litigation in the Lahaina case and move forward with solutions for our aina and our future,” she said, adding that “no one’s trying to get rich off of suing the county for this. The motivation and reason behind these cases is to encourage the county to do right by our environment and our planet.”
Rawlins-Fernandez said the Supreme Court would likely rule in favor of the county “because it’s Trump’s court right now,” and she didn’t want Maui County to be known for enabling more pollution.
In explaining her “no” vote, Sugimura said she wanted to get a decision by the high court to “clear up” the discrepancies between the various courts.
“The Supreme Court has taken this case so that clarity can occur,” Sugimura said. “I think all of us want to have a clear, pure environment, protect the aina, protect the coral reef. Because of those reasons, I think that we need clarity in this law.”
Molina, the committee chairman, said he “regrettably cannot support the settlement at this time.” He felt more questions needed to be answered and wanted to get input from the DOH and the EPA.
“This is a tough one, folks, no matter which way you vote,” Molina said. “For me, there’s still questions that need to be answered. I need those assurances, especially as it relates to the cesspools.”
Molina wondered why the DOH or the EPA hadn’t submitted anything in writing to the council, and said maybe they don’t want to take a position and were waiting for guidance from a higher court. He said the change in political climate in Washington, D.C., is “a valid concern for many,” but that he wanted to “err on the side of caution” until he could get more clarity from the two agencies.
In the latest settlement offer dated May 9, plaintiff attorneys with Earthjustice noted that it now includes the county no longer needing to make an admission regarding the wells’ impact on the environment. Other remedies in the settlement were already approved in other court cases, including investing $2.5 million or more to divert treated wastewater from the Lahaina facility’s injection well for reuse, reimbursing the community groups’ cost of litigation in District Court and the 9th Circuit of Appeals and paying a $100,000 penalty to the U.S Treasury.
* Melissa Tanji can be reached at email@example.com. Colleen Uechi contributed to this story.