Bloomberg Law, November 6, 2019
By Greg Stohr
Hawaii dispute could affect mines, coal-fired power plants
Pollution case evokes talk of Agatha Christie, spiked punch
U.S. Supreme Court justices seemed conflicted over the reach of the Clean Water Act as they heard arguments Wednesday in a clash over treated wastewater that environmentalists say is damaging a coral reef off Hawaii.
Amid references to Agatha Christie murder mysteries and a party guest who spikes the punch bowl, the justices tried to avoid either giving large polluters an easy way to skirt regulation or subjecting individual homeowners to burdensome requirements.
Environmentalists contend a Maui water treatment facility needs a permit to keep discharging wastewater that eventually travels to the Pacific Ocean. Maui County and President Donald Trump’s administration say the Clean Water Act doesn’t cover the discharges because they pass underground before reaching the ocean.
The hour-long session indicated key justices weren’t fully comfortable with either side’s argument. Chief Justice John Roberts suggested the Trump administration’s position would exempt pollution from federal regulation if it passed through “two inches” of groundwater.
Justice Stephen Breyer said Maui’s position would create a “road map” to evade federal permitting requirements. But later he told the lawyer challenging the facility’s discharges, “I am worried about 500 million people or something suddenly discovering that they have to go apply for a permit” from the Environmental Protection Agency.
The court’s ruling, expected by July, will shape the rules for mines, coal-fired power plants and large-scale animal feeding operations.
Spiking the Punch
Like many Supreme Court disputes, the fight focuses on the meaning of a commonplace word — in this case, “from.” The Clean Water Act requires a permit for discharges into a major body of water “from any point source,” which the law defines to be a specific conveyance such as a pipe, ditch or well.
Deputy Solicitor General Malcolm Stewart, making the Trump administration’s case, offered an image of someone who pours whiskey from a bottle into a flask and then brings the flask to a party and empties the liquid into the punchbowl.
“Nobody would say that I had added whiskey to the punch from the bottle,” Stewart said.
It wasn’t clear that analogy was especially convincing. Justice Elena Kagan said Stewart’s position “leaves a very large sphere of activity that the federal government is still not touching.”
David Henkin, an Earthjustice lawyer challenging the discharges, also ran into resistance when he invoked a familiar legal phrase and said the permit requirement should kick in when a point source is the “proximate cause” of pollution that reaches a major body of water.
“‘Proximate cause’ is notoriously manipulable,” Roberts said.
Leaky Septic Tanks
Several justices pressed Henkin to say how his test would ensure that homeowners wouldn’t be penalized under federal law for having a leaky septic tank. Henkin said homeowners would be protected in part by the difficulty in tracing water pollution back to a particular tank.
That argument drew pushback from Roberts and drew the chief justice into a back-and-forth clash with Kagan.
“So you’re saying if it’s one house, one septic tank, that person will need a permit,” Roberts said. “If it’s a residential development and you have a hundred septic tanks, which would seem to me to be a hundred times worse, they don’t need a permit.”
Henkin had barely begun his answer when Kagan jumped in.
“I would think that that’s a usual thing in law, right?” Kagan said. “You can’t hold somebody responsible for something unless you knew that they were responsible for that thing.”
“It’s an Agatha Christie novel,” Roberts shot back seconds later. “You have 20 people and they shoot the gun at the guy at the same time. They’re all — no one’s guilty?”
“But that’s tort law, right?” Kagan asked.
The problem for the the court will be to find a coherent middle ground. Breyer floated the idea of requiring a permit for the “functional equivalent of a direct discharge.”
That proposal lasted about 20 minutes. “I don’t mean to be critical of the author of the phrase, but what does ‘functional equivalent’ mean?” Roberts asked Henkin, drawing laughter from the crowd.
Breyer then told Henkin not to worry, suggesting that he, Roberts and the other justices could talk privately.
“You didn’t make this phrase up,” Breyer said. “We do discuss these things. So we will discuss them.”
The dispute comes as the Trump administration moves to restrict federal jurisdiction over wetlands and waterways. The EPA said in September it would repeal an Obama administration rule that broadly defined what qualifies as “waters of the United States” under the Clean Water Act. Trump administration officials are drafting a replacement rule now, as environmental groups challenge the repeal.
The Hawaii treatment facility, three miles north of the town of Lahaina, releases 3 million to 5 million gallons of treated water a day into four underground pipes, known as injection control wells. The discharged fluid then mixes into the groundwater.
A federal-state study using dye showed that much of the water reaches the Pacific through small fissures in the ocean floor. Environmental groups say decades of discharges have devastated a once-pristine coral reef off nearby Kahekili Beach.
The groups say nutrients in the discharges have stimulated the growth of algae that smother the coral by blocking photosynthesis. The county says it sent an expert to the beach in 2014 and found no evidence the reef had suffered any damage.
Environmental groups led by the Hawaii Wildlife Fund sued the county in 2012. Although the Maui County Council has approved a proposed settlement with the groups, the county’s mayor has balked, keeping the Supreme Court showdown on track.
The case is County of Maui v. Hawaii Wildlife Fund, 18-260.