Supreme Court Justices Searching For A Compromise In Major Environmental Case

National Public Radio – NPR Law, November 6, 2019

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By Nina Totenberg

The Supreme Court heard arguments that could limit the scope of the Clean Water Act. At issue is whether a Maui wastewater plant needs a federal permit because effluents end up in the ocean.



To the Supreme Court now, where justices seem to be searching for a compromise in a major environmental case. At issue – whether a new Trump administration interpretation of the Clean Water Act creates what critics say is a major loophole in the law. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: At the center of the dispute is a Maui County sewage treatment facility in Hawaii that, each day, pumps 3 to 5 million gallons of treated water into underground pipes. There that fluid is mixed with groundwater and, according to a federal state study, eventually seeps into the Pacific Ocean. Environmentalists claim that the discharges have, among other things, devastated a beautiful nearby coral reef. In 2012, the Hawaii Wildlife Fund sued the county, contending it was violating the Clean Water Act because it had never sought a permit for its wastewater disposal method. The lower courts ruled that the federal law does cover not just pollutants that travel directly into the ocean and other navigable waters but also pollutants that travel through groundwater. Although the Maui County council agreed to settle the case, the county’s mayor refused to sign on to the settlement. So today the Supreme Court heard arguments in the case. On the steps outside, lawyer David Henkin, representing environmental groups, noted that the Trump administration is siding with the wastewater plant in this case and in so doing, reversed three decades of EPA interpretation of the federal anti-pollution law.

DAVID HENKIN: The Clean Water Act was designed to eliminate pollution from precisely the type of large sources like this municipal wastewater treatment plant that is discharging millions of gallons of treated sewage into the ocean every day. It just happens to be using wastewater instead of a pipe to do that, and that doesn’t get it out of the Clean Water Act.

TOTENBERG: Representing the contrary argument inside the courtroom was Elburt Lin, who maintained that the environmentalists were seeking a radical expansion of the federal law. Chief Justice Roberts – your position is that if pollutants go through groundwater, they’re removed from any federal requirement for a permit; they’re not covered. Answer – that’s right. Justice Breyer – so what happens if you have a pipe, and you decide we’ll end the pipe 35 feet from the river or ocean? Now, you know perfectly well that it’ll drip down into the ground and be carried out into the navigable water. In that situation, replied Lin, it’s the groundwater that’s carrying the pollutants not the pipe, and it wouldn’t be covered by the permit requirement. Justice Breyer, his voice rising – then what we have is an absolute road map for people who want to avoid regulation. What I’m looking for is a standard that will prevent evasion but not turn everything into a big, complex regulatory issue. Lawyer Lin replied that many states do fill in the gap in such situations and do require permits. In that case, asked Justice Sotomayor, how did you get away with it here? How do you continue to do it without taking remedial steps? When environmental lawyer Henkin came to the lectern, he got equally skeptical questions from the justices. Justice Alito – let’s take the ordinary family out in the country that has a septic tank, and they get a building permit for it. And then it turns out 10 years later that some things are leaching out of the tank into navigable waters. So they would be violating the Clean Water Act and subject to the $50,000 a day penalties. Lawyer Henkin replied that septic tanks are highly regulated all over the country and that these tanks don’t pollute groundwater that goes into navigable waters anyway. Well, water runs downhill, grumped Justice Gorsuch. And if this septic tank was put in by a shoddy installer, it could wind up in the waters of the United States. Justice Kagan – can scientists trace pollutants in the ocean to an individual septic tank? Answer – no. And if you don’t know who’s doing the polluting, there’s no permit requirement. Chief Justice Roberts, puckishly – so it’s an Agatha Christie novel. Twenty people shoot the guy at the same time, so nobody’s guilty.

Nina Totenberg, NPR News, Washington.


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Nov. 7, 2019
David Henkin, the lawyer representing environmental groups, contacted NPR to say he misspoke. Henkin had initially said: “It just happens to be using wastewater instead of a pipe to do that, and that doesn’t get it out of the Clean Water Act.” He said he had intended to say: “It just happens to be using groundwater instead of a pipe to do that, and that doesn’t get it out of the Clean Water Act.”

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