Honolulu Star-Advertiser, November 7, 2019
By Sophie Cocke
Maui County Council members who tried to stop a case involving wastewater injection wells from being heard before the U.S. Supreme Court on Wednesday say they still hope Maui Mayor Michael Victorino will withdraw the case before justices can come out with a ruling sometime next year.
The Hawaii Wildlife Fund and three other Maui community groups sued Maui County nearly a decade ago arguing that the county needed to obtain an environmental permit for the discharge of treated wastewater from its Lahaina Wastewater Treatment Plant into underground injection wells. Studies indicated that sewage was seeping through the ground to nearshore waters, damaging coral reefs and the marine ecosystem.
Maui County has fought the case all the way to the Supreme Court. Environmental attorneys say if the court ultimately rules in favor of the county, it could weaken the federal Clean Water Act. If the county loses, it could cost local taxpayers significantly more money.
Maui County Council Chair Kelly King said that in reviewing the transcripts of Wednesday’s oral arguments before the court, it appeared that it hadn’t gone well for the mayor.
“It’s pretty obvious to me that it is not going in his favor and that is going to end up costing us money for sure if it goes to the ruling,” said King.
In September, the Maui County Council voted 5 to 4 to settle the case so it wouldn’t be heard by the Supreme Court. But Victorino decided to move forward with the appeal.
As part of the settlement, Earthjustice agreed to waive more than $1 million in attorneys fees. King said that in addition to having to now pay these costs if the county loses, there also could be additional fines administered by the U.S. Environmental Protection Agency which oversees the Clean Water Act.
King also criticized the cost to taxpayers of having the mayor and other officials travel to Washington this week to hear the case.
“I’m not sure what the point of that was because my sense was that the mayor really wasn’t speaking or adding anything to the case,” said King.
In addition to the mayor, Maui Corporation Counsel Moana Lutey, Deputy Corporation Counsel Richelle Thomson, Department of Environmental Management Director Eric Nakagawa and acting Wastewater Division Chief Scott Rollins traveled to Washington. The total estimated cost for the travel is about $15,000, according to Brian Perry, a spokesman for the mayor.
Perry, in defending the travel, said the government officials served as resource personnel to help the legal team prepare oral arguments. He said the injection well case is one of the most important issues facing the county and that Victorino believed it deserved his firsthand attention.
Councilman Mike Molina, who along with King and others voted in favor of settling the case, said he was worried the case is hurting Maui’s reputation of being environmentally progressive.
“It seems like we are taking the side of the polluters, you know, which contrasts to what people have always thought of Maui as — a place where we are always going to put our environment first or at the very least balance things out,” he said.
Defending Maui County is the Trump administration, which has sought to role back environmental regulations. Amicus parties also have joined the case from across the country, with blue states and environmental groups lining up behind Earthjustice and industry groups and red states backing Maui County.
During Wednesday’s hourlong oral arguments, Supreme Court justices, both conservative and liberal, appeared skeptical of a Trump administration argument that the federal Clean Water Act should not apply to sewage plant wastewater that flows into the ground and eventually seeps into federally protected waters, such as rivers or oceans.
The 9th Circuit Court of Appeals in San Francisco previously held that the pollution was subject to federal control because it was the “functional equivalent of a discharge into the navigable water.”
Deputy Solicitor General Malcolm Stewart said the EPA disagreed with that view. “Groundwater will break the causal chain,” he said.
“Any groundwater?” asked a skeptical Chief Justice John G. Roberts Jr.
Justices Elena Kagan and Stephen G. Breyer said that if that view were adopted, it would allow polluters to run pipes that stop 25 feet short of a river or bay. It would give “an absolute road map” for how to break the law while spewing pollution, Breyer said.
But the justices also struggled over how to prevent the stricter permitting rules required under the Clean Water Act from applying to ordinary home owners with a leaky septic tank.
David Henkin, a Honolulu-based attorney with Earthjustice, argued the case for the environmental groups.
“I think we were very pleased that the justices were honing in on the key issues in the case, which is whether polluters like Maui County can evade the Clean Water Act simply because they use the groundwater as a sewer to convey their pollution into the ocean rather than building an ocean outfall,” he told the Honolulu Star-Advertiser following oral arguments.
Henkin said that while he was pleased with the Supreme Court’s line of questioning, “it’s impossible to read the tea leaves and know exactly how the court is going to come out.”
Victorino was not available for an interview on Wednesday. In a statement released to the media he said the case was not about winning or losing, but about clarifying the law.
“Leaving this litigation unsettled would leave unanswered questions that would make Maui County taxpayers vulnerable to more lawsuits, uncertain regulatory requirements and staggering costs — all for what would be a negligible environmental benefit,” said Victorino.