Clean Water Act Supreme Court Ruling Expected Next Year

After a long legal battle spanning from 2014 and losing in 9th Circuit Court of Appeals, the County of Maui and its legal counsel have taken the case regarding the Clean Air Act to the Supreme Court, where [thus far] a hearing was held on Nov. 7th, and an official verdict is expected next year.

Why it matters: According to the Los Angeles Times, The County of Maui in Hawaii operates a wastewater treatment where 4 million gallons of sewage are treated daily. Some of the treated wastewater is disposed into wells, where the nasty discharge and waste can travel from and eventually end up in the pacific ocean. A coalition of environmentalists like the Sierra Nevada group, and Hawai’i Wildlife Fund,. (Read more about which groups are involved here) have acquired legal counsel (Earthjustice Attorney David Helkin) and are suing the county of Maui on the basis of their violation of the Clean Water Act, which essentially establishes that any discharge or pollution that ends up in navigable waters (i.e. waters of U.S. territory) must be done by obtaining a proper permit. This case is significant because the current presidential administration has backtracked on environmental issues in the past, such as when they pulled out of the Paris Climate Agreement, and with the Trump-appointed justice Kavanaugh involved in the hearings, we may see a ruling for the county of Maui. 

POV 1: The Earthjustice organization also claims that the pollution from Maui’s treatment plant has devastated the reefs. Indeed, Earthjustice attorney David Henkin, representing the environmentalists, has fought against the county of Maui before in 2014 regarding the contamination and deterioration of the reefs. In 2014, the same parties, the Earthjustice counsel, and the county of Maui, were involved in a legal battle regarding the same issue. In the 2014 case, Earthjustice won. It wasn’t until 2019 when the county of Maui petitioned the ruling to the Supreme court.   Indeed, this is the same case being relitigated, with the county of Maui petitioning the ruling of the 2014 case. Read more about the 2014 case in this EE News article.

POV 2: The county of Maui’s defense, at its core, is that they are not violating the law because they merely dispose of the discharge in wells, not directly in the ocean. The discharge that ends up in the ocean travels via groundwater. Thus, the county argues, they are not responsible for the pollution because they dispose of it properly into wells, what happens to it afterward is caused by the system of groundwater that makes it possible for the discharge to travel to the ocean. 

Bottom Line: This case essentially hinges on the question of whether pollution that discharges groundwater that eventually makes its way to jurisdictional waters requires a National Pollution Discharge Elimination Permit (NPDES), or whether such discharges are regulated under the Clean Water Act (CWA). 33 U.S.C. § 1329 (2018). 

The counsel for Maui, Hunton Andrews Kurth LLP attorney Elbert Lin will argue Clean Water Act permits are not required for the county because the act only specifies tubes and pipes type sources that are the “means of delivering” pollution to water on U.S. territory. (LA Times).

Earthjustice attorney David Henkin will argue that the county of Maui’s wells are “point sources” of discharge and that since contamination of the ocean is a “foreseeable, natural consequence” of its operation, federal permits are indeed needed.

Now, after initial hearings, where no ruling was given, the case will yet again see the Supreme Court in 2020, and a final verdict is expected. In the past, specifically in 2012, the county was sued by the same organization  (Earthjustice), where they won. However, the county continually operated its plant and new issues have arisen. Now this new issue of polluting has been put forth to the Supreme Court, where oral arguments have been given, but a ruling has not been established. Next year, the Supreme Court Counsel for the Trump administration’s EPA will argue in front of the Supreme Court and explain how the Clean Water Act does not regard pollution that travels through groundwater. 

What we want to know on Quibbl:

  • With a Trump-appointed justice (Kavanaugh) and new anti-climate change EPA administration, will the Supreme court continue to allow the pollution and rule in favor of the county of Maui? Make a bet

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