Also affected could be agricultural interests, mining companies, home builders and even — this was a sticking point for some justices — individual homeowners with septic tanks. On the other side were environmentalists and former Environmental Protection Agency officials who contend that the Trump administration is advancing a dangerous reading of the law that reverses three decades of protection.
“Interesting and difficult,” concluded Justice Brett M. Kavanaugh, whose view could be decisive in the case.
All agree that sewage plants and others must get a permit under the Clean Water Act when they produce pollutants that go from the plant to a body of navigable water.
Maui County injects 3 million to 5 million gallons of treated wastewater into four deep injection wells. Some of that wastewater eventually gets into groundwater, which tests have shown eventually gets to the Pacific Ocean.
Environmentalists sued and won at the U.S. Court of Appeals for the 9th Circuit, which rejected Maui’s argument that because the wastewater passed through groundwater — rather than coming directly from the plant — it did not need Clean Water Act permitting.
Maui tried the claim again at the Supreme Court, but Chief Justice John G. Roberts Jr. questioned whether it was possible to draw so defined a line.
If the plant’s wastewater “ever runs into groundwater, it is not the means of conveyance but the groundwater is?” Roberts asked.
“That’s correct, your honor,” said Elbert Lin of Richmond, who argued for Maui. “. . . The discernible, confined, and discrete conveyance must carry and deliver the pollutant to the navigable waters.”
Justice Stephen G. Breyer said that could not be right, because it would provide an “absolute road map” for polluters to avoid regulation: End the pipe somewhere just short of a river or ocean. “Now you know perfectly well that it’ll drip down into the ground and it’ll be carried out into the navigable water,” said Breyer. “In your theory, that isn’t covered?”
No, Lin said. “In that scenario, your honor, the land is the conveyance.”
Justice Elena Kagan said Congress could not have had that in mind. “Nobody would ever have to go through that process of getting a permit if they knew that they could do something like what Justice Breyer was suggesting, just stop the pipe five feet before the ocean,” she said.
Lin said there were other state and federal regulations to cover such a scenario.
The Environmental Protection Agency once agreed with the environmentalists, and in fact supported them in the case before the 9th Circuit. But the Trump administration changed its view in April and now supports Maui County.
Justice Department lawyer Malcolm L. Stewart proposed the booze-in-the-punch scenario: If someone poured whiskey from a bottle into a flask, then brought the flask to a party and poured the liquor into a punch bowl, no one would say the whiskey ran from the bottle into the bowl. Groundwater is like the flask, breaking the connection from the plant to the ocean.
(The government did not agree with Lin about the ground, however.)
David L. Henkin, representing the Hawaii Wildlife Fund and others, said Stewart’s hypothetical missed the point: “Congress was trying to prohibit whiskey in punch.”
He proposed another way to think of it. If you went to the grocery store and made purchases and then transported them home in your car, you wouldn’t say the groceries came from the car, you’d say they came from the store.
But conservative justices said the 9th Circuit and Henkin were advancing a very broad test: that the pollution be traceable to a source and that there is evidence it caused the injury — “proximate cause” is the legal term
Roberts said that was as extreme as what the other side was arguing. Proximate cause is “notoriously manipulable,” he said.
Justice Samuel A. Alito Jr. worried about an unwitting homeowner with an improperly installed septic tank. “They would be violating the Clean Water Act for lack of a permit and would be subject to all the penalties that go with that for every day of the violation?” asked Alito, about fines that go as high as $50,000 a day.
Henkin said it was unlikely anyone could trace the pollution back to a single septic tank. Then what about a subdivision full of faulty tanks, Roberts asked. Would no one be responsible?
“It’s an Agatha Christie novel,” Roberts said. “You have 20 people and they shoot the gun at the guy at the same time. . . . No one’s guilty?”
Breyer seemed to hope that the court could find a middle ground. He suggested a test could be whether migration of pollutants is the “functional equivalent of a direct discharge.”
That “leaves a lot of room for the EPA to write regulations, to decide what is the functional equivalent of a direct discharge.”
Henkin said he would be happy with that, but other justices and the lawyers for the other side said that seemed as vague as the 9th Circuit’s test.
Not to worry, said Breyer. “We do discuss these things,” Breyer said, referring to the private conferences where the court decides cases. “So we will discuss them.”
The case is County of Maui v. Hawaii Wildlife Fund.