USA TODAY | April 23, 2020
By Richard Wolf
WASHINGTON – The Supreme Court sided loosely with environmentalists Thursday in a case that threatened to ease the regulatory burden on industries that pollute lakes, rivers and oceans indirectly.
The justices devised a compromise interpretation of federal law under which Hawaii’s Maui County could be found in violation of the Clean Water Act for injecting treated sewage into groundwater that later reached the Pacific Ocean.
The high court’s four liberal justices were joined by Chief Justice John Roberts and Associate Justice Brett Kavanaugh in a ruling that threatens business and municipal polluters. They had argued that requiring permits for indirect pollution affects too many innocent parties – even homeowners with septic tanks.
Dumping pollutants directly into navigable bodies of water, such as through pipes, is prohibited by the 48-year-old law. But it is less clear about pollution that begins before reaching those waters. The U.S. Court of Appeals for the 9th Circuit had allowed indirect pollution to be regulated.
In a ruling written by Associate Justice Stephen Breyer, the court’s majority said pollution that begins in groundwater flowing to lakes, rivers and oceans can be regulated if it is the “functional equivalent of a direct discharge.”
Environmental groups warned that reversing the 9th Circuit decision would give polluters such as chemical plants, oil refineries, animal feeding operations and others carte blanche to discharge pollutants into the nation’s waterways.
Earthjustice, which argued the case in November on behalf of the Hawaii Wildlife Fund, had called it “the clean water case of the century” because of the impact it could have on water pollution nationwide.
“This decision is a huge victory for clean water,” said David Henkin, who argued the case for Earthjustice. “The Supreme Court has rejected the Trump administration’s effort to blow a big hole in the Clean Water Act’s protections for rivers, lakes, and oceans.”
But with the court’s compromise ruling, the ultimate impact will be left to lower courts that will have to determine whether pollution that starts above or below ground before reaching navigable waterways is indirect or the “functional equivalent” of direct pollution.
Breyer, known for crafting compromise rulings and reading into Congress’ intent, said the distance pollution travels and the time it takes before reaching bodies of water will be key to deciding whether permits are necessary in the future.
“Where a pipe ends a few feet from navigable waters and the pipe emits pollutants that travel those few feet through groundwater (or over the beach), the permitting requirement clearly applies,” he wrote. “If the pipe ends 50 miles from navigable waters and the pipe emits pollutants that travel with groundwater, mix with much other material, and end up in navigable waters only many years later, the permitting requirements likely do not apply.”
Conservative Associate Justices Clarence Thomas, Neil Gorsuch and Samuel Alito dissented, accusing the court’s majority of making up a new regulatory standard.
“The court speculates as to ‘those circumstances in which Congress intended to require a federal permit,'” Thomas wrote. “But we are not a super-legislature (or super-EPA) tasked with making good policy – assuming that is even what the court accomplishes.”
Alito was more blunt.
“If the court is going to devise its own legal rules, instead of interpreting those enacted by Congress, it might at least adopt rules that can be applied with a modicum of consistency,” he wrote. “Here, however, the court makes up a rule that provides no clear guidance and invites arbitrary and inconsistent application.”