Reuters, November 6, 2019
By Lawrence Hurley
U.S. Supreme Court justices across the political spectrum appeared to be searching for a compromise on Wednesday as they considered an important environmental case from Hawaii that could limit the scope of a landmark federal law aimed at curbing water pollution.
WASHINGTON (Reuters) – The case focuses on whether a wastewater treatment plant in Maui County should be subject to anti-pollution provisions in the 1972 Clean Water Act. The nine justices engaged in a lively, sometimes combative, hourlong argument in an appeal the county of a lower court ruling siding with the Hawaii Wildlife Fund and other environmental groups that accused local officials of violating that law.
The San Francisco-based 9th U.S. Circuit Court of Appeals last year found that a Clean Water Act program – one that requires property owners responsible for polluted water discharged from pipes, drains or other “point sources” to obtain federal permits – should apply to discharges from the county wastewater facility that end up in the Pacific Ocean.
A decision in favor of the county could limit the ability of environmental groups to sue for certain Clean Water Act violations.
The justices court seemed receptive to concerns raised by environmentalists that a ruling for the county could allow for polluters to easily evade federal jurisdiction. But several of them appeared worried that a ruling favoring the environmental groups could allow a massive increase in the number of people, including individual homeowners, who could require permits.
The legal question is whether the county needs a permit even though the waste reaches the ocean via groundwater and is not discharged directly into the ocean through a pipe or other means.
Liberal Justice Stephen Breyer said that polluters could simply construct a pipe that terminates 35 feet (10 meters) before a river, knowing full well the polluted water would eventually reach it even if it was not conveyed directly by the pipe.
“What we have is … an absolute road map for people who want to avoid the ‘point source’ regulation,” Breyer said, calling for a legal test that would “prevent evasion.”
Conservative Justice Samuel Alito had a different concern: individual homeowners with septic tanks that discharge pollution into the groundwater being faced with federal enforcement, which can lead to daily financial penalties, were the environmental group to win.
Fellow conservative Justice Brett Kavanaugh said that a “clear line for the property owner is, I think, really important here” so they would know if a permit was needed.
Chief Justice John Roberts appeared skeptical that individual homeowners could avoid liability because it would be difficult to trace the pollution to their homes.
“It’s an Agatha Christie novel,” Roberts said, in reference to the famed writer of mysteries in which a detective reveals the identity of the culprit from a roomful of suspects.
The environmental groups accused the county of violating the Clean Water Act because several million gallons of treated wastewater from the Lahaina Wastewater Reclamation Facility ends up in the Pacific every day.
President Donald Trump’s administration sided with the county, noting that the U.S. Environmental Protection Agency, which oversees Clean Water Act enforcement, concluded in April that any discharges into groundwater are not covered by the federal permit program.