Maui’s Water Fight Has Become A Major Power Struggle

The mayor won’t settle a case with national implications despite the council’s instruction to do so, spurring a new lawsuit to sort out the separation of powers.

Honolulu Civil Beat, October 24, 2019

By Nathan Eagle

Environment

A legal fight on Maui over the effects of a wastewater treatment plant on coral reefs has become a battle over power between the county’s executive and legislative branches of government.

An outpouring of public testimony last month prompted a majority of the County Council to settle a Clean Water Act case before it reaches the U.S. Supreme Court, which has scheduled arguments Nov. 6.

But Mayor Mike Victorino’s administration has refused to follow the council’s direction, creating what council chair Kelly King has called a “crisis of the charter.”

“I feel like we’re in this Trumpian, dystopian level of denial of current statutes and law,” she said Tuesday. “We were hoping the mayor would do the easy and pono thing and agree to settle and it’d be over.”

The mayor’s office did not respond to a message seeking comment this week. In a prior statement, Victorino said the nation’s highest court must decide the case to avoid exposing Maui to more lawsuits, unclear regulatory requirements and huge costs.

District and appeals courts have ruled that the county needs a National Pollutant Discharge Elimination System permit for its Lahaina wastewater facility, which handles about 3 million to 5 million gallons of sewage a day.

The facility uses injection wells to pump treated water into the ground, but studies have found the effluent is ultimately entering the ocean near Kahekili Beach and harming the reefs.

County attorneys have advised the mayor that the 9th U.S. Circuit Court of Appeal’s ruling last year means many county facilities — not just wastewater treatment plants — are likely in violation of federal law because they lack an NPDES permit. They fear fines and criminal penalties could ensue.

Attorneys for Earthjustice have repeatedly dismissed such concerns. The firm represents the four environmental groups that initially filed the lawsuit in 2012 — the Hawaii Wildlife Fund, Sierra Club-Maui Group, Surfrider Foundation and West Maui Preservation Association.

They have said the real risk is taking the case to a conservative-leaning U.S. Supreme Court that could gut the Clean Water Act, a bipartisan law that has provided the bedrock protection for the country’s rivers, lakes and coastal areas since the 1970s.

“It’s unfortunate that the mayor has chosen to side with the Trump administration and the nation’s worst polluters, rather than listen to the will of the people of Maui, who spoke out overwhelmingly in favor of settling the case and focusing on addressing the harm the Lahaina injection wells are inflicting on Maui’s priceless coral reef every day,” Earthjustice attorney David Henkin said.

‘Hole In The Law’

Maui has a unique provision in its charter, essentially the county’s constitution, that other jurisdictions, such as Honolulu, don’t have. It says that if the charter is silent on who should carry out a certain power, then the council decides by ordinance or resolution.

King and a majority of her colleagues on the nine-member council see their resolution authorizing the settlement as a binding action that the mayor must follow.

Maui County Council Chair Kelly King

But Victorino and the Corporation Counsel attorneys advising him see it more as a recommendation. They have not commented on that charter provision, Section 2-2, but have pointed at a part of the county code that deals with settlements.

Carlie Procell/Civil Beat

Read the briefs each group filed in the U.S. Supreme Court case here.

In a legal opinion earlier this month by Deputy Corporation Counsel Peter Hanano, the department argues that the county code requires the council and mayor to both approve the terms in order to accept the settlement before them.

With the council and mayor in a stalemate, the case has stayed on track to be heard next month by the Supreme Court.

But clarity could be coming soon to break through this legal logjam.

Anthony Ranken, a Wailuku attorney representing the nonprofit Maui Tomorrow and Rep. Angus McKelvey, plans to file a lawsuit Thursday to ask a judge to decide who has the power to settle the case.

He said the complaint will allege that the Corporation Counsel has a conflict of interest and cannot represent the county because the mayor and council are in disagreement. The county’s lawyers are supposed to represent the interests of the county as a whole, he said, not just one branch of government.

“It’s an important hole in the law, apparently,” Ranken said. “It’s something quite important in terms of the separation of powers.”

Ultimately, he said the relief they will seek is an order directing the mayor and Corporation Counsel to implement the terms of the settlement and withdraw the county’s appeal to the U.S. Supreme Court.

King said the judge may end up directing the council and mayor to each obtain outside legal counsel to work toward reaching a resolution. That could prove tricky.

The council can only hire special counsel with a two-thirds vote, which it may not have in this case. The settlement resolution was approved 5-4. It’s on the council’s agenda for Tuesday though.

For the mayor to obtain special counsel, the council would need to approve the funding. The council might be reluctant to do so if it can’t come up with the votes to hire its own outside attorneys.

“We should all want clarification,” King said, adding that the ramification is that every case is going to be questionable from here on out. “Do we just stop settling cases and let the mayor do everything?”

Stuart Coleman, the Hawaii manager of Surfrider Foundation, said the environmental groups never wanted to file a lawsuit in the first place and would be happy to just settle the case and move on.

“This is just completely unprecedented,” he said. “It’s not like Hawaii to be this renegade. Usually, push comes to shove and we turn to aloha.”

Coleman said he thinks this will be a case that law students will study for years to come because it’s going to continue to generate national attention.