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Fighting Polluters in the Supreme Court

By Rhoda Feng

A case about the Clean Water Act has been making waves.

A wastewater treatment plant in Maui County, Hawai‘i has long polluted the Pacific Ocean by pumping wastewater underground, where the wastewater migrates to the nearby ocean through groundwater. The plant also poses a threat to lakes, rivers, and streams nationwide.

Losing no time, a group of environmentalists sprang into action: they brought a lawsuit against polluters seeking to exploit a loophole in the Clean Water Act. The case wended its way to the U.S. Supreme Court. Four nonprofit organizations, represented in the Supreme Court by lawyers from Public Citizen and Earthjustice, contended that Maui County’s discharges violated federal law. They urged the Court not to misread the Clean Water Act to encourage dirty industries—like fracking, industrial agriculture, and coal mining—to contaminate our nation’s water bodies. In a recent decision, the Court handed a huge win to clean water activists, ruling that the polluters’ actions were damaging coral reefs in Hawai‘i.

Polluting Without a Permit

For years, Maui County’s Lahaina Wastewater Reclamation Facility has been pumping millions of gallons of sewage into disposal wells a few hundred yards from the shoreline. From there, the pollutants – including phosphorus and nitrogen – flow with groundwater into the ocean just offshore of the popular Kahekili Beach, which features a once-pristine coral reef that is a mecca for snorkelers. The pollutants have significantly damaged the reef by contributing to the growth of coral-smothering algae.

The Clean Water Act prohibits discharges of pollutants to navigable waters (like the Pacific Ocean) from disposal wells without a permit. Maui County, however, never got a permit for its discharges. Instead, the county argued that it was not violating the Clean Water Act because it does not discharge “directly” into waters of the U.S., but instead pollutes the ocean via groundwater.

The case thus posed a major test of the commitment of the courts to read laws as they are written.

Public Citizen Gets Involved

In 2012, four nonprofit organizations—the Hawai‘i Wildlife Fund, the Sierra Club-Maui Group, the Surfrider Foundation and the West Maui Preservation Association—joined together to sue Maui County under the Clean Water Act. The U.S. District Court in Hawai‘i ruled for the organizations and against the county in 2015. Maui County appealed, and in 2018 the U.S. Court of Appeals for the Ninth Circuit affirmed the district court’s ruling that the county’s discharges are illegal.

Maui County then asked the U.S. Supreme Court to hear the case. Because another court of appeals had reached the opposite conclusion in a similar case, the Supreme Court accepted the case.

Public Citizen signed on as co-counsel with Earthjustice for the four organizations in early 2019. Public Citizen attorney Scott Nelson co-authored their Supreme Court brief.

Earthjustice and Public Citizen argued that the Clean Water Act does not say that “indirect” discharges are allowed, and the county’s argument amounted to a request that the Supreme Court create an unwritten exception to the law. Progressive states, former EPA officials and administrators, a native American tribe, scientists, fishermen, and craft brewers also filed briefs in the Supreme Court supporting the protections of the Clean Water Act.

“Maui County was essentially asking the Supreme Court to rewrite the Clean Water Act in the guise of interpreting it,” said Scott Nelson, a Public Citizen attorney who served as Supreme Court co-counsel. “This case has enormous implications for the bodies of water that the Clean Water Act was designed to protect.”

The Supreme Court agreed by a 6-3 vote. The Court’s opinion, written by Justice Stephen Breyer, points out that the county’s position would allow polluters to evade the law merely by moving their discharge pipes a few yards from the water’s edge. “We do not see how Congress could have intended to create such a large and obvious loophole in one of the key regulatory innovations of the Clean Water Act,” the Court stated.

Instead, the Court ruled that the Clean Water Act prohibits unpermitted discharges of pollution “into navigable waters, or when the discharge reaches the same result through roughly similar means.” Discharges that reach navigable waters through groundwater or other indirect ways will be covered by the Act if they are the “functional equivalent” of a direct discharge.

The Court also rejected arguments made by the U.S. Environmental and Protection Agency and Justice Department, which switched sides while the case was before the Supreme Court to support the county. The Court held that the EPA’s views were entitled to no deference and were “difficult to reconcile” with the words of the Clean Water Act. The Court concluded that “EPA’s oblique argument … cannot overcome the statute’s structure, its purposes, or the text of the provisions that actually govern.”

The decision is a stinging rebuke to polluters’ efforts to disregard the plain meaning of laws passed by Congress while rolling back environmental protections. The case will now return to the lower courts for a determination of whether Maui’s discharges are covered under the “functional equivalent” standard announced by the Court.