Bloomberg Law, November 6, 2019
Product Liability & Toxics Law News
Case involves Pacific Ocean pollution off Maui coast
Justices to decide whether federal permits required
The Supreme Court appears willing to set limits on the Clean Water Act’s signature permitting program, but seems unsure where to draw the line.
During Nov. 6 oral arguments, the justices wrestled with a fundamental question of the law’s reach: Are permits required for pollution that takes an indirect route to federal waters?
Several members of the court expressed concern that a narrow reading of the Clean Water Act could allow polluters to sidestep the law, giving them what Justice Stephen Breyer called a “roadmap” to avoid regulation.
But Breyer and others also seemed worried about stretching the law too far.
“What concerns me is whether there is any limiting principle that can be found in the text that is workable and doesn’t lead to an absurd result,” Justice Samuel Alito said.
The case, County of Maui v. Hawai’i Wildlife Fund, is the biggest environmental dispute on the Supreme Court’s docket this term. It centers on wastewater injection wells in Maui County that send treated sewage underground, where it mixes with groundwater and flows to the Pacific Ocean, potentially harming coral reefs and other marine life.
Environmental lawyers involved in the case said they were encouraged by the fact that several justices seemed dissatisfied with exempting all pollution via groundwater from the Clean Water Act’s permitting program.
But they cautioned that the court could land on a new legal standard or a fractured opinion that would prompt a new generation of Clean Water Act litigation.
The justices seized on competing interpretations from Maui County, the Trump administration, and Hawaii environmental groups for when pollution that moves indirectly to a federal waterway triggers the Clean Water Act’s permitting program.
The law requires federal permits for pollution that moves from a distinct “point source” to a federally regulated waterway.
Several justices seemed particularly troubled by arguments from Maui and the Trump administration that the wastewater’s path through state-regulated groundwater breaks the chain and puts the pollution beyond the law’s scope.
“In your test, any little bit of groundwater is enough to break the chain?” Chief Justice John Roberts asked Deputy Solicitor General Malcolm Stewart, who responded that state-level regulation fills the gap.
Stewart compared it to pouring whiskey from a bottle into a flask and then using the flask to spike a punch bowl. The flask, not the bottle, poured the whiskey into the bowl.
In the same way, he said, the groundwater, not the disposal wells, delivered Maui’s pollution to the ocean—taking it out of the Clean Water Act’s permitting requirement for pollution from a point source to a federal waterway.
Earthjustice lawyer David Henkin, representing the environmental groups, took up the analogy and said that the point of the Clean Water Act was that “Congress was trying to prohibit whiskey in punch.”
‘Some Clear Line’
The environmental groups urged the Supreme Court to endorse a “fairly traceable” or “proximate cause” test for when pollution via groundwater triggers the Clean Water Act’s permitting program.
Under that approach, pollution would require a federal permit if it could be traced back to the source, and the polluter could have anticipated it would reach a federal waterway. The U.S. Court of Appeals for the Ninth Circuit used that standard when it ruled for the environmentalists in 2018.
Several justices—including Alito, Breyer, and Justices Neil Gorsuch and Brett Kavanaugh—seemed leery of the standard and asked what would protect a individual homeowner, for example, from facing Clean Water Act liability for a leaky septic tank.
“Some clear line for the property owner is really important here,” Kavanaugh said.
Breyer proposed his own legal test: whether pollution via groundwater is the “functional equivalent” of a direct discharge from a point source to a federal waterway.
He said he wasn’t tied to that particular approach, but favored a standard that would be adequately protective without putting “all kinds of people in the position of trying to get a permit.”
Unclear Ideological Boundaries
Legal experts saw the arguments as a mixed bag for both sides.
“Before I came here today I would have said 5-4 probably in favor of Maui County,” said West Virginia-based lawyer Jesse Richardson, who represents groundwater professionals and the private water-well industry on Maui’s side.
“Now I’m not so sure,” he added. “And I think if one of the justices can come up with a test that people like, it might still be 5-4. But I think ideological boundaries weren’t clear here.”
American University professor Amanda Cohen Leiter, who worked with the environmental groups in the case, had a similar experience—from the other side.
She said she was nervous going into oral arguments, “but I left court a little reassured” that the justices wouldn’t adopt Maui County’s position.
“I was heartened that even some of the more conservative justices recognized that there needs to be a limit, and that a large-scale polluter like this is on the wrong side of that limit,” she said.
Angela T. Howe, legal director for the Surfrider Foundation, one of the environmental groups in the case, said the court could possibly issue a split opinion, like it did in the famously fractured Rapanos v. United States. That 2006 Clean Water Act case spawned years of regulatory updates and litigation over what counts as a “water of the United States” under the law.
“I think we could get another decision like Rapanos where’s there’s concurring opinions, and it leads to a lot of uncertainty,” she said.
Dawson & Associates senior adviser Larry Liebesman, a former environmental official for the Justice Department and the Environmental Protection Agency, said the Supreme Court might end up crafting an opinion that “sends a message to EPA” to clarify the permitting program to find a middle ground—not letting big polluters off the hook, but also not sweeping in small sources.
The case is Cty. of Maui v. Hawai’i Wildlife Fund, U.S., No. 18-260, oral arguments 11/6/19.
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