Story at a glance

  • On Wednesday, the Supreme Court heard oral arguments in County of Maui v. Hawaii Wildlife Fund.
  • The decision will determine whether Maui’s wastewater treatment facility violated the CWA by polluting the Pacific Ocean indirectly through groundwater.
  • And it will have consequences beyond Hawaii, influencing how water pollution is regulated throughout the country.

The Supreme Court heard arguments on Wednesday for a case with major consequences for how water pollution is regulated in the United States.

Enacted in 1972, the Clean Water Act made it “unlawful to discharge any pollutant from a point source into navigable waters, unless a permit was obtained.” The Supreme Court will determine in County of Maui v. Hawaii Wildlife Fund whether Maui’s wastewater treatment facility violated the CWA by polluting the Pacific Ocean indirectly through groundwater. But the reach of the Court’s ruling, expected sometime in Summer 2020, can extend well past Hawaii and may have consequences for how water pollution is regulated throughout the country. 

At issue in the case is how broadly to define point-source pollution. The county doesn’t deny that the wastewater enters the ocean, but it argues that it doesn’t require a permit under the CWA because the wastewater reaches the ocean through groundwater. Two courts have already ruled in favor of Hawaii Wildlife Fund and three other Maui groups, all represented by Earthjustice. The U.S. Environmental Protection Agency had filed an amicus brief in support of Earthjustice’s clients back in 2016, but following the change in administrations, the federal government has switched sides. This time around, the federal government supported the county, while former EPA administrators filed a brief in support of the four Maui environmental groups.

Throughout oral arguments, the justices wrestled with what the scope of the standard should be to be held liable for water pollution without a permit. Many of the justices expressed fear of creating a loophole, but some appeared hesitant to adopt the broader standard, argued by Earthjustice lawyer David Henkin. 

Justice Stephen G. Breyer, for example, questioned the lawyer for the County of Maui, “So what happens if you … end the pipe five feet from the river or from the ocean? Now you know perfectly well that it’ll drip down into the ground and it’ll be carried into the navigable water.”

“What I’m looking for in this case is … a standard that will prevent evasion,” Breyer said during the arguments. Justice Samuel A. Alito also echoed that point later, “So what concerns me is whether there is any limiting principle that can be found in the text and is workable and does not lead to absurd results.”

However, when it was Henkin’s turn to argue, justices questioned how a broader interpretation of point-source pollution might cause individual homeowners to become liable in the case of accidental spills from septic tanks.

“The question in my mind is, does the Supreme Court land in one end or the other, or somewhere in the middle?” says Kevin Minoli, a former senior official in the EPA’s Office of General Counsel and partner at the law firm Alston & Bird. “That's going to determine the ultimate impact.”

Published on Nov 08, 2019