Supreme Court Weighs Limits on Water Pollution Law

The lively argument included discussions of whiskey punch and the novels of Agatha Christie.

The New York Times, November 6, 2019

By Adam Liptak

WASHINGTON — The Supreme Court on Wednesday considered the reach of the Clean Water Act, debating how it applies to pollutants that reach the sea and other protected waters indirectly, through groundwater.

The question was technical but the argument was lively, touching on spiked whiskey punch and the novels of Agatha Christie.

The case, County of Maui v. Hawaii Wildlife Fund, No. 18-260, concerned a wastewater treatment plant on Maui, Hawaii, that used injection wells to dispose of treated sewage by pumping it into groundwater about a half-mile from the Pacific Ocean. Some of the waste reached the ocean.

The Clean Water Act requires some “point sources” of pollution to obtain permits. Failing to have a permit can subject polluters to daily fines of more than $50,000.

Point sources are defined in the law to include “any discernible, confined and discrete conveyance,” including pipes, tunnels and, notably, wells. It was undisputed that the injection wells in Maui were covered by the law.

But Elbert Lin, a lawyer for Maui County, argued that the law did not require his client to get a permit because of another provision, one that barred “any addition of any pollutant to navigable waters from any point source.”

He focused on the word “from.” Since the pollution passed through groundwater, Mr. Lin said, it did not come from a point source. The law only applies, he said, when the point source “is the means of delivering pollutants to navigable waters.”

Malcolm L. Stewart, a lawyer for the federal government arguing in favor of the county, offered an analogy.

“If at my home I pour whiskey from a bottle into a flask and then I bring the flask to a party at a different location and I pour whiskey into the punch bowl there,” he said, “nobody would say that I had added whiskey to the punch from the bottle.”

David L. Henkin, a lawyer for environmental groups suing the county, said the analogy was not appropriate to the facts.

“Congress was trying to prohibit whiskey in punch,” he said. “So if all of a sudden you tasted the punch and you said, ‘This tastes like whiskey,’ you’d say, ‘Where did that come from?’ You’d say it came from the whiskey bottle. That’s how we know it’s whiskey.”

Justice Samuel A. Alito Jr. pressed the point, asking if it would be fair to say the whiskey “came from a barrel in Scotland.”

Perhaps, Mr. Henkin said. “If the whiskey were spoiled in some way, you might ask, ‘Where did this whiskey come from?’ And you might trace it back to the barrel in Scotland, particularly if it’s poisoned or harmful in some way. So it all depends on the context.”

Mr. Henkin had his own analogy.

“When you buy groceries, you say they came from the store, not from your car, even though that’s the last place they were before they entered your house,” he said. “Likewise, the millions of gallons of treated sewage entering the Pacific Ocean off West Maui every day come from petitioner’s wells under any understanding of the term.”

The justices, for their part, seemed concerned about both the sweep of the law and whether a narrow interpretation of it could allow polluters to evade its goals. They discussed, for instance, whether owners of faulty septic tanks would be covered by the law.

Mr. Henkin said it would ordinarily be impossible to determine the source of the pollution in neighborhoods with many septic tanks.

Chief Justice John G. Roberts Jr. appeared dissatisfied with that answer. “So all you have to do is get a bunch of neighbors and all put the septic tanks in, and then you’re scot-free?” he asked.

Justice Elena Kagan said it is commonplace in the law for people to avoid liability if there are many possible wrongdoers. “If there are 20 other people who could be responsible for that thing, then you can’t hold them responsible for that thing, can you?” she asked.

Chief Justice Roberts said that reminded him of a murder mystery. “It’s an Agatha Christie novel,” he said. “You have 20 people and they shoot the gun at the guy at the same time.”

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