Fighting Polluters in the Supreme Court

By Rhoda Feng

A case about the language of the Clean Water Act is 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. Now the plant also poses a new threat to lakes, rivers and streams nationwide: In a case brought by environmentalists to stop the plant’s discharges, the U.S. Supreme Court is considering whether to sharply limit protections provided by the Clean Water Act to bodies of water across the country.

Four nonprofit organizations, represented in the Supreme Court by lawyers from Public Citizen and Earthjustice, contend that Maui County’s discharges violate federal law. In the Supreme Court, they are urging 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.

“Maui County essentially is requesting that the Supreme Court rewrite the Clean Water Act in the guise of interpreting it,” said Scott Nelson, a Public Citizen Litigation Group attorney who helped write the brief urging the Supreme Court to keep the Clean Water Act’s protections intact. “This case may appear to be technical, but it has enormous implications for the bodies of water that the Clean Water Act was designed to protect.”

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.

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 Gets Involved

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

In the Supreme Court, Maui County argues that it should not have to get a permit because its discharges are “indirect” – that is, because the pollutants flow through groundwater before reaching the Pacific Ocean. In response, the organizations’ brief explains that the Clean Water Act does not say that “indirect” discharges are allowed. The county’s argument therefore amounts to a request that the Supreme Court create an unwritten exception to the law.

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

The U.S. Environmental Protection Agency (EPA) and U.S. Department of Justice – which supported the public interest groups in the lower courts before the Trump administration took office – switched sides when the Supreme Court accepted the case and now support Maui County and industries that pollute. On the pro-environment side, progressive states, former EPA officials and administrators, a native American tribe, scientists, fishermen and craft brewers filed briefs in the Supreme Court supporting the protections of the Clean Water Act.

David Henkin of Earthjustice will argue the case for the groups seeking to hold Maui County accountable. The argument will be held on Nov. 6, and the Supreme Court will issue its decision sometime before June 2020.

“Creating an exception to the Clean Water Act would let polluters deliberately use our nation’s lakes, rivers, streams and seas as dumping grounds for pollution as long as their discharge pipes stop just short of the waterline,” said Nelson. “That would significantly erode one of the nation’s most successful antipollution laws.”