Policy

Pollution in paradise reaches high court with high stakes

Decision on Hawaii wastewater could have wide impact on Clean Water Act enforcement

Pacific Ocean coral reefs off the coast of Hawaii are threatened by pollution from Maui County, according to environmental groups. (Photo by: David Fleetham/VW PICS/Universal Images Group via Getty Images)

A lawsuit with sweeping nationwide implications for the regulation of water pollution makes its way to the U.S. Supreme Court on Wednesday.

The case, County of Maui v. Hawai’i Wildlife Fund, hinges on the origin of water pollution and the scope of the Clean Water Act.

Environmental groups sued the county in 2012, arguing discharges from a Maui wastewater treatment plant violate that law and are damaging coral reefs in the nearby Pacific Ocean. The county, however, says that pollution does not require a permit under the act because the wastewater enters the ocean through groundwater, rather than directly.

The justices’ decision could cast far-reaching effects on the national permitting system for water pollution and change how the Clean Water Act, the country’s bedrock water law, is enforced.

All the parties in the case agree that since the 1970s, Maui County has operated a treatment plant that disposed of wastewater by injecting millions of gallons every day into wells from which it seeps into groundwater and enters the Pacific Ocean.

But the parties — which include EarthJustice representing the plaintiff, as well as the Trump administration and conservative political groups that filed friend-of-the court briefs siding with Maui — split over how the act should be interpreted.

Under that law, permits are required for the release of pollutants from any “point source,” such as factory pipes or something specific.

Maui says it does not need a federal permit because the pollution doesn’t flow directly from the injection wells into which it pumps treated wastewater; the pollution instead seeps from the wells and makes its way through groundwater to the ocean.

EPA stands down

And in a break from precedent under Republicans and Democrats, the Trump administration argues the pollution is beyond the reach of the EPA's permitting authority when it touches groundwater.

David Henkin, the Earthjustice lawyer who will argue for the environmentalists, said that could create a loophole for industry.

“We would see polluters all across the country just pulling their pipes out of the water and just polluting with abandon,” Henkin said.

A ruling for Maui, which the U.S. government sided against during the Obama administration, could make it more difficult for the public to sue to clean up pipeline, oil, coal ash and other types of spills and mining debris.

Rita Aspinwall, a member of the Fond du Lac Band of Lake Superior Chippewa Tribe, which is near copper-nickel and iron mines in Minnesota, said weakening permitting standards could pollute her community.

“If the loophole were approved, the Clean Water Act would no longer protect the tribe against pollution,” Aspinwall said.

Fossil energy companies, including Kinder Morgan and Energy Transfer Partners, the firm behind the Dakota Access pipeline in North Dakota, filed briefs supporting the county.

So did 16 Republican senators and the Pacific Legal Foundation, a conservative group, arguing lower court rulings were too broad.

Glenn Roper, an attorney with PLF, said siding against the county could give federal authorities too much power.

“States have just as much interest in clean water as does the federal government,” Roper said, adding that narrowing the CWA would not lead to unaddressed water pollution. “I personally don’t think that it would be a problem having worked in state government.”

Semantic differences

In court papers, Senate Republicans argue the law should not cover instances like Maui’s, and they say scrutinizing the text of the law does not connect groundwater and surface water.

“A close reading of the text shows that even where there is a hydrologic connection between groundwater and surface water, the Act does not extend federal permitting power over groundwater,” their brief reads. “Instead, it directs the Environmental Protection Agency (EPA) to provide support to the States’ regulatory efforts.”

In an unusual twist, the environmentalists argue a so-called “plain text reading” of the law, a traditionally conservative legal tactic, favors them.

“The plain language of the statute clearly provides that the Clean Water Act protects rivers and lakes and streams from pollution from a point source,” Frank Holleman, senior attorney at the Southern Environmental Law Center, said in an interview.

“The plain language of the statute incorporates it,” said Holleman, who clerked for Justice Harry Blackmun. “The industry opposition has really done linguistic backflips.”

Not only does the law prohibit “any addition of any pollutant to navigable waters from any source,” but interpreting the CWA as the county and industry groups prefer would upend decades of EPA practice, according to Shaun Goho, deputy director of the Emmett Environmental Law & Policy Clinic at Harvard Law School.

30-year practice

“For at least thirty years, until a few months ago, EPA interpreted the CWA to allow the regulation of point source discharges that pass through hydrologically-connected groundwater to jurisdictional surface waters under the NPDES program,” Goho wrote in a brief referring to the National Pollutant Discharge Elimination System. “It has repeatedly expressed this interpretation in regulatory preambles, permit writers’ manuals, and other guidance documents.”

Goho, who filed the brief on behalf of former EPA officials, said in an interview that the kind of discharge in Maui has traditionally been viewed by the agency as within the purview of the law.

“They have always recognized that this occurs,” Goho said. “And that it’s important ... to have that protection in place,” he said. “This has been happening in the past 30 years and the world hasn’t ended.”

Federal courts at the district and appellate levels ruled for the plaintiffs in the underlying case.

Tracer dye studies conducted on the Maui site in 2011 and funded by the EPA show sewage from the injection wells in question made its way through groundwater on the island and into the ocean.

Scott Strand, a senior attorney with the Environmental Law & Policy Center, which is unaffiliated with the case, said a ruling for the county could trigger significant pollution in states with weak water laws.

“In some states where state law wouldn’t pick up the difference, that would be a real problem,” Strand said.

Under the CWA now, any citizen with standing can sue over pollution. That ability could go away, depending on how the court rules if companies followed the county’s rubric.

“We’re just like Maui,” Strand said companies will argue, “So we don’t have to get permits and we can discharge what we think is appropriate.”

The case is Cty. of Maui v. Hawai’i Wildlife Fund, U.S., No. 18-260.

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