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Supreme Court hands environmentalists a win in water pollution case

The Supreme Court on Thursday sided with environmentalists by giving a broad reading to the types of water-borne pollution covered by the Clean Water Act.

In a 6-3 decision, the justices held that a permit is required for either a direct discharge of pollutants into federally regulated rivers and oceans or its “functional equivalent.”

“Suppose, for example, that a sewage treatment plant discharges polluted water into the ground where it mixes with groundwater, which, in turn, flows into a navigable river, or perhaps the ocean,” Justice Stephen BreyerStephen BreyerSotomayor dissents to latest federal execution, calling it 'justice on the fly' Supreme Court rules Trump administration can enforce rule requiring abortion pills be obtained in person The Supreme Court punts, once again, in census ruling MORE wrote for the majority.

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“Must the plant’s owner seek an EPA permit before emitting the pollutant?” he continued, referring to the Environmental Protection Agency. “We conclude that [a permit is required] if the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters.”

At issue in the case was whether Maui County in Hawaii violated the Clean Water Act, the landmark 1972 environmental law, by injecting wastewater underground without a permit that then seeped into the Pacific Ocean.

In siding with environmental groups, Breyer was joined by his fellow liberal justices Ruth Bader GinsburgRuth Bader GinsburgRuth Bader Ginsburg, George Floyd among options for 'Remember the Titans' school's new name Bipartisan anger builds over police failure at Capitol Lindsey Graham praises Merrick Garland as 'sound choice' to serve as attorney general MORE, Sonia SotomayorSonia SotomayorHarris to be sworn in by Justice Sotomayor using Thurgood Marshall's Bible Sotomayor dissents to latest federal execution, calling it 'justice on the fly' Supreme Court rules Trump administration can enforce rule requiring abortion pills be obtained in person MORE and Elena KaganElena KaganSotomayor dissents to latest federal execution, calling it 'justice on the fly' Supreme Court rules Trump administration can enforce rule requiring abortion pills be obtained in person Taylor Swift sexual assault verdict discussed at Supreme Court MORE, as well as more conservative Justice Brett KavanaughBrett Michael KavanaughWhy we need Section 230 more than ever 'Almost Heaven, West Virginia' — Joe Manchin and a 50-50 Senate Murkowski says she is not considering joining Democratic caucus MORE and Chief Justice John Roberts. 

The decision returns the case, County of Maui, Hawaii v. Hawaii Wildlife Fund, to the 9th Circuit Court of Appeals to apply the new “functional equivalent” test.

David Henkin, an attorney with Earthjustice who argued the case on behalf of environmental groups, celebrated the win.

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“This decision is a huge victory for clean water,” he said in a statement. “The Supreme Court has rejected the Trump administration’s effort to blow a big hole in the Clean Water Act’s protections for rivers, lakes, and oceans.” 

Justice Clarence ThomasClarence ThomasTrump eyes lawyer who spoke at rally to help in impeachment trial: report Biden's identity politics do a disservice to his nominees For conservative justices, faith in 'religious freedom' trumps public health MORE wrote a dissent that was joined by Justice Neil GorsuchNeil GorsuchBiden to introduce Garland as attorney general, other top DOJ nominees Biden to name Merrick Garland for attorney general Supreme Court rejects Christian school's push for COVID-19 carve-out MORE, and Justice Samuel AlitoSamuel AlitoSupreme Court rejects Christian school's push for COVID-19 carve-out For conservative justices, faith in 'religious freedom' trumps public health Hillicon Valley: Lawmakers call for action after 'devastating' cyberattack on federal government | US cyber agency issues emergency directive following hacks | FTC opens privacy study into major internet platforms MORE wrote a separate dissenting opinion that accused the majority of going beyond the text of the Clean Water Act.

"If the Court is going to devise its own legal rules, instead of interpreting those enacted by Congress, it might at least adopt rules that can be applied with a modicum of consistency,” Alito wrote. “Here, however, the Court makes up a rule that provides no clear guidance and invites arbitrary and inconsistent application.” 

Michael Kimberly, an attorney at McDermott Will & Emery who co-authored an amicus brief in support of the Maui County, criticized the majority opinion as setting an “amorphous” new environmental standard.

“Not only is the decision vague, but it leaves countless responsible landowners potentially liable for discharges from ‘point sources’ to ‘navigable waters’ that aren’t actually anything of the sort,” he said. 

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The case arose in the spring of 2012, when four Hawaii environmental groups sued Maui County to stop a municipal water treatment plant from pouring millions of gallons of wastewater each day into wells running hundreds of feet deep, where the treated sewage combined with groundwater.

A study showed some of the wastewater later surfaced at popular beach areas, and the environmental groups said pollutants contained in the discharge had interfered with nearby coral reef and triggered invasive algae to bloom. They argued the county was operating in this way without a federal permit, in violation of the Clean Water Act.

The 9th Circuit Court of Appeals eventually sided with the environmental groups, prompting an appeal to the Supreme Court.

Updated at 12:14 p.m.