Behind Supreme Court’s Clean Water Decision

And it's about half a mile from the Pacific Ocean and this very popular surfing beach, and it travels through the groundwater enters the Pacific Ocean, where the studies have shown it's done quite a bit of damage to the coral reef in that area. And of course, because the treated sewage still has some bacteria in it, it creates a potential health threat to people that are swimming in the waters. And this has been going on for a

very long time. Neither the e p A nor the state agency that regulates these kinds of discharges have ever required a Clean Water Act permit for the injection of this effluent into the groundwater. And so the Ninth Circuit, in response to a citizen suit brought by a number of groups in Hawaii ruled that as long as you could fairly trace the pollutants that are in the ocean back to these injection wells, that kind of discharge required

a permit under the Clean Water Act. And so that was the question that went to the Supreme Court, when, if ever, will a discharge through the groundwater into surface water require a Clean Water Act permit? And what did they decide? They decided that on some circumstances a permit will be required. And it's interesting it was a Justice Brier opinion. It was six to three, which is a

significant margin of victory for an environmental result. And most interestingly, judged an ad joined the majority along with Chief Justice Roberts. So it was a very strong opinion in that regard. But Justice Brier didn't like the Ninth Circuit fairly traceable test. He didn't like the argument the environmental groups were making that as long as you could show a product that the discharge was the proximate cause of the pollutants getting

into the ocean waters. He didn't like that test. E p A at one time had a different test that said if there was a direct hydrological connection between the groundwater and the surface water that might require a permit. So Justice Brier decided to come up with his own test, which he called the functional equivalent of a direct discharge.

And nobody knows exactly what he means by the functional equivalent, and including of course Justice Alito, who wrote a very long and test the descent, saying this doesn't make any sense. It's too vague for anybody to understand. Justice Brier outlined about seven different factors that you would be considered in determining whether there was a functional equivalent of a direct discharge. The most important elements, as Justice Prior said, is time

and distance. In other words, how long does it take for the pollutant to travel from the point source through the groundwater into the surface water. But he didn't say, you know how much time or how much distance. So that's what the lower courts are now going to have to figure out. So did it revolve around the word from that? Was? That was really the critical word? Justice Alito said, It's a combination of what what does the point source definition mean, what does the addition of a

pollutant mean? And what does from mean? But I think, yes, I think that the key was is the pollutant in the ocean water coming from the injection wells or from the groundwater, And of course, in a sense it's both.

But the conservative justices of the court Alito Thomas, course it's They wanted a really strict bright line rule that said unless there is a direct discharge from a point source like a pipe or a ditch or something like that, it's just not regulated as a discharge is then addressed as a non point source problem, and that's up to the individual states to decide how to deal with that.

So that element introduces a familiar theme that we see in these environmental cases, which is the federalism concept where does federal law end and state law begins? And the difference between a point source discharge and a nonpoint source pollution problem gets that that federalism question. So will this decision make it more difficult for property owners to predict whether they need a federal permit or not? I think it will. Actually, Brier's seven factor tests are not even exhaustive.

He doesn't indicate which ones are the most important ones. So you're left with trying to figure out how far away from surface waters can I be before I have to worry about an activity that either either injecting waste into the groundwater or just you know, activities that involved some runoff which might go into a ditch, which then might seep down into the groundwater. It does that require

a permit. There's another case, the Kindred Morgan case, in which a pipeline ruptured and the gas leaked into the groundwater. Some of it was cleaned up, most of it wasn't. That groundwater eventually took the gas into a river. So that's going to be one of the early cases to decide. Is that the kind of functional equivalent of a discharge? Many many different questions are going to have to be sorted out, and it will take years to figure this out.

Environmentalists are celebrating this as a victory, but this reversed a decision in their favor with a broader standard at the ninth Circuit. So where's the victory. Well, the victory is in the bullet that was dodged, because if the if the elito version of the Act applied, you could have a big loophole in the law which would allow people to move their pipelines back from the river, let's say, and discharge to the ground and then it would flow

into the river that wouldn't be covered. There are a lot of situations like these coal ash pits that are all throughout the southeast where the coal country is, and they're loaded with heavy metals and toxic chemicals and so forth, and those have become major sources of both groundwater contamination and river contamination. Those wouldn't be regulated under the Clean

Water Acts. So the real victory here, I think is what didn't happen, which is that the court didn't decide to create this fairly large loophole that people could avoid the permit requirement. And this idea that it can dealt

with as a non point source problem is really fanciful. Um, the reason we have so many UH rivers and lakes that don't meet water quality standards is because of non point source pollution and because there's no regulation of that kind of pollution, no meaningful regulation, that's why we have all these serious water quality problems. So the more that you exempt polluting activities from the permit program, the harder it is going to be to achieve water quality. So

the real victory here is what didn't happen. But this has to go back now, to the Ninth Circuit or to the lower court. It will go back to the Ninth Circuit first. The Ninth Circuit will then send it back down to the district Court in Hawaii, and then the question will be, well this case finally gets settled. You know, we've had to prior settlements in the case. But the mayor of Maui, I think it is yes, Um,

Victorino um has mixed both of these settlements. Um. From what I see, the county and the city both have expended over four million dollars to litigate this case. Some of these lawyers, these are pretty steep, right, and Um, the question is, at what point did the taxpayers of Maui say enough is enough, let's settle this case. So I'm guessing there will be a settlement of the case. But the mayor hasn't said yes or no to that yet.

So now let's talk about the lineup which you mentioned six to three with Chief Justice John Roberts and Justice Brett Kavanaugh joined the liberals. Was that a surprise? It wasn't if you read the transcript or listened to the oral argument when Justice Briar floated his functional equivalent idea. Although Justice Roberts seems somewhat skeptical. It was pretty clear because Briar said, well, this is something that we'll be discussing.

That was kind of acute, at least to me, that Roberts and Briar had had some kind of discussion about how to handle this case. Roberts clearly disagreed with the argument that there would be no regulation any time a discharge touched, as he put it, groundwater. He asked during oral argument. He asked the petitioners lawyer Albert Lynn, you mean to tell me, even if the discharge only goes through two inches of groundwater, it wouldn't require a permit,

And Lynn said that's right, it wouldn't. So Roberts wasn't buying this absolute rule that an indirect discharge could never be regulated, But he clearly didn't like the Ninth Circuits very broad, fairly traceable test, so I guess by default

he went along with Briar's decision. And it's critical that Robert's assigned Briar the opinion UH instead of giving it to someone else, so that gave Briar a chance to really flesh out as much as he could his task and also completely disagree with E p A's argument, the Trump administration's argument, and so forth. So are you telling me, Pat that they discussed the cases before the oral arguments and they sort of line up people. Yeah. Yeah, shocking,

isn't it. Yes, they do. They have these conferences and sometimes we learned this from the papers of Justice Blackman and others that are now at the Library of Congress. They actually take straw votes on some of these cases in conference just to see kind of what what does the lineup look like? And that tells the Chief Justice sort of if he's going to go along with one faction of the quarter or the other, who's going to

get the assignment to write the opinion. That's a critical decision point in a in a lot of these cases. So yeah, my guess is that Roberts had a fair idea um that this was going to be a close vote, and as I said, he was he clearly was not going to go along with the petitioners argument, so he landed more on the side of Briar than Alito, and that's how the case came out. So that explains Roberts. What about Kavanaugh, because when we've talked before, he has

not come out as a justice who would side with environmentalists. No. In fact, he wrote a separate concurring opinion, very short concurring opinion, in which he said what tips the scales for him was his idol Justice Scalia and something that Justice Scalia had said in this infamous Rapanos case, where Scalia said the word He looked at both the word from point source and to the waters of the United States and said that that combination suggests to me that

it doesn't require a direct discharge. If Congress had meant it to mean direct discharge, it would have used the word into the surface water. By using the word too, he said that suggested in some cases indirect discharges could also be covered. Kavanaugh cited that as the decisive factor for him inciding with Briar and Roberts and the more liberal wing of the court. Still, I think a notable thing.

I mean, it would have been more natural I think for cavanaught aside with Aldo on a question like this, a very textualist kind of approach to the interpretation. But he didn't. He went. He went with the more environmental point. Is this also a message to the e p A

that they had flip flop too far. Yes, and that all the justices noted, even Alito, that e p A was entitled to no deference in this case because they had been so inconsistent with the way that they looked at this question of when would a discharge through groundwater

be regulated or not? And that that is true. But I would also say that or time, e p A has more often come down on the side of regulating some of these instances of discharges through groundwater, and specifically, in the Maui case, had filed a brief in the Ninth Circuits supporting the assertion of Clean Water Act jurisdiction over that particular activity. So all the justices were very

critical of e p A in the Maui case. So is the difference in the e p A the difference between an e p A under Obama and an e p A under Trump or is it just a difference? I think this one is more a matter that the agency has just not been consistent through a variety of administrations. UM. Certainly the Trump administration's approach didn't command any significant respect

in the decision in the Maui case. UM. And so therefore I would say, you know, the Trump administration's approach probably you know, was was more ex stream um than prior administrations, but they've all struggled with how to regulate this kind of activity. So now industry groups are up in arms saying this is going to open the floodgates to clean water litigation. Do you see that happening? I don't.

I think there is gonna be a period of time for years actually where we're not going to have a final resolution of this question of how often will these

kinds of indirect discharges be regulated. But if you look back over the history of the clean wire at which is approaching fifty years now, there actually is a very very small number of instances where these indirect discharges have actually been regulated, And the common theme and all of them is the discharges are relatively close to the surface water, and they have been traced by things like die studies, so that you knew the pollutant you're finding in the

river was coming from this particular point source. Even though it had to travel through groundwater, it was getting there relatively quickly. So I don't. I don't see a huge number of these cases. One area where this is going to be actively litigated are these coal ash pits that I mentioned, because there are thousands of them throughout coal country. Most of them are online pits, most of them are

leaking pollutants into groundwater that gets into surface water. That's going to be a very active area of litigation, but it's it's hard to see that this is going to be a huge new source of regulated activities. So besides water treatment plants and the coal pits, what other facilities

does this ruling effect? Probably mining operations which also have a lot of ponds, and the ponds themselves are considered points sources, and if they overtop and float down into rivers or lakes, or if they leak out the bottom and go through the groundwater, you could probably see some litigation over that kind of activity. But the sewage treatment plants around the country that use these injection wells to get rid of their treated effluent, I think those are

eligible or potential targets for some of this litigation. But as I say, we haven't seen a whole lot of that in the past. Now, whether all of a sudden there will be a whole new wave of these citizen suits, it's hard to say, but historically we haven't seen that. Thanks Pat, that's Pat Parento of the Vermont Law School. Thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple Podcasts, SoundCloud,

and on bloomberg dot com slash podcasts. I'm June Brasso. This is Bloomberg