Justices Conflicted in Landmark Environmental Case

Ocean off the coast of Maui. During oural arguments, the justices seemed conflicted over the reach of the Clean Water Act to cover treated waste water that environmentalists say is damaging a coral reef there. Joining me is Pat Parento, a professor of environmental law at the University of Vermont

Law School. So Pat breakdown the issue for us. So, what's happening is the County of Maui in Hawaii is discharging their sewage waste through an injection well that's within about a half a mile of the ocean, and so the wastewater goes down into the ground, through the groundwater, and into the ocean where it's been causing pretty significant

harm to the reef system there. It also has bacteria, of course in it, which is a potential threat to the swimmers and surfers that use the beach, and they don't have a permit under the Clean Water Act for that kind of discharge, and they argue that because it's going through the groundwater, they're not subject to the permit requirements of the Clean Water Act. The Ninth Circuit, on the other hand, held they were, and that they needed to get a permit and comply with those terms, which

would protect the ocean waters. And that's the issue that's up before the Supreme Court. This is the first time the Supreme Court has been asked to rule on to what extent are discharges through groundwater regulated under the Clean Water Act. Pat it seemed from looking at a transcript of the arguments that key justices weren't comfortable with either

side's argument. I think that's right. The County of Maui, so ported by the Solicitor General the Trump administration, is saying that only discharges that are direct from a point source like a pipe, into navigable waters are regulated. And when pressed, they even said, even if it only goes two feet through groundwater before it reaches navigable waters, it's not regulated. And I think it's fair to say a

majority of the justices are not buying that argument. On the other hand, I think a majority of the justices are not buying the Ninth Circuit's ruling that anything that is quote fairly traceable from the point source to the navigable water is covered. So it seems like various justices are trying to come up with what's called a limiting principle. If we rule that there are some circumstances where discharges through groundwater are covered, what are the circumstances where it's

not covered? And particularly Justice Kavanaugh was hammering that point, saying people need to know whether they need a permit or not. And there was a lot of discussion about people with septic systems and homeowners and so forth, and how do they know whether they need a permit or not? So that seems to be where the court is focused. Is there a way to rule that some things are subject to regulation but many things are not. Does this mean that we could end up with some kind of

a split decision that doesn't provide guidance for the future. Well, we saw that before with the infamous Rapanos case. So let's hope we don't get another muddled and muddy decision like that. No, I think the Court is going to be careful to come up with some kind of a rule that's clear enough, a bright line that's clear enough to guide both E p A and people that might have to get a permit. What exactly that's going to be,

I'm not sure. The best test that I think the Court can come up with is what we call a proximate cause, a concept that's familiar in tort law when you assign responsibility to someone for the pollution they're causing. I don't think I can say that a majority of the justices have accept a simple approximate cause test, but

I'm thinking something along those lines might emerge. Justice Brier suggests that a functional equivalent test, that if you could say that the discharge through groundwater was functionally equivalent to a direct discharge in the navigable waters, that would be subject. But Chief Justice Roberts really pooh pooed that and said, I don't think functional equivalent is any clearer than fairly traceable, so that's probably not gonna work. Roberts doesn't also seem

totally comfortable with just a simple proximate cause test. Neither does Justice Alito or Kavanaugh or Gorsuch. They all expressed doubt about that. So that's where we are. They're gonna have to if they come out with a decision that says some discharges through groundwater are covered, they're going to have to come up with a tight sort of time and space rule for how close the discharge has to be to navigable waters and how fast the discharge gets

to navigable waters. Or the court could simply go completely the other way and agree with the government that no, no discharges through groundwater are ever covered. But the problem with that ruling is it flies in the face of the language the text of the statute, which says any discharge from a point source to navigable waters is regulated. So they're going to have to struggle with the text of the statute which seems to say some things have to be covered, and the problem of how to limit

that coverage. Could this decision affect more than water, No, this is really unique to the Clean Water Act. It doesn't really involve the Air Act or any other statute,

and it's specific to the wastewater discharge permit program. We also have a program called the nonpoint source Control and there was lots of discussion in the argument about is this better dealt with as a non point source problem, which is typically runoff that isn't controlled in any way, and that that's not exactly what's going on here either. But under the Water Act, those are the only two categories of regulation or program. One would be a formal

permit program, which is expensive. I mean, you know, if you violate those permits, it can be up to fifty dollars a day, and that that that bothers Justice Kavanaugh and some of the others. And if but if you're on the other hand, if you treat it as a non point source problem, it really doesn't look like that. It's not like just sheet flow off the landscape. It

definitely is being injected into the water. What seems a little strange about this case is that the Maui County Council approved a settlement with the environmental groups, but the county's mayor won't approve it. So is there a settlement that seems reasonable in the works or suggested? Yes. In fact, there have been two settlements. The case was originally settled even before the Ninth Circuit decision, but because of this dispute between the mayor and the county council. They ended

up not honoring the settlement. The settlement was, if we lose in the Ninth Circuit, we will agree to get a permit and do some other things recycling of the wastewater, which is a good actual solution to a lot of this. But because the mayor said no, I don't under any circumstance want to be subject to the permit program, they pressed on with the Supreme Court appeal, and then more recently there was a revised settlement that the council has approved.

In the mayor once again vetoed that this is a really strange case, and it's possible that if a Hawaii court rules that the county council has the authority to settle the case, then the settlement could be entered in the U. S. Supreme Court and the case would be dismissed. And if that happened before the court issues a decision, then there will be no decision in the case. So this is a very odd circumstance. I would say, finally, can you put this into context with what the Trump

administration is doing to restrict federal jurisdiction over wetlands and waterways. Right. So the other big rule that's rolling back federal protection is what we call wodas, the Waters of the US Rule, which determines the geographic scope of the Clean Water Act.

And the Trump administration has repealed the Obama rule, which set very clear lines on what was protected, and it went quite a ways up the watershed, protecting wetlands and headwaters, streams and so forth, and had a lot of science behind There are reasons for why they were regulating it. The Trump administration has said, note, we're not going to regulate anywhere near the scope of waters that the Obama administration wanted to regulate. But the Trump administration has not

yet issued its final rule replacing the Obama rule. So we're once again in this period of certainty and actual chaos and trying to figure out what are the rules for what waters are protected by the federal government. Thanks Pat, that's Pat Parento, professor at 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 podcast. I'm June Brosso. This is Bloomberg