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Supreme Court Bolsters Water Pollution Law in Hawaii Lawsuit

— April 24, 2020

In his dissent, Justice Samuel Alito said the majority provided ineffective guidance that’d encourage inconsistent application of precedent.

On Thursday, the U.S. Supreme Court rejected a Trump administration case against a landmark water pollution law passed in Hawaii.

Reuters reports that the case centers on whether Hawaii’s Maui County can be sued by environmentalists for permitting sewage discharges to reach the Pacific Ocean without a federal permit, as required by the Clean Water Act. While Maui County’s wastewater wasn’t dumped directly into the ocean, it managed to enter the Pacific through underground aquifers.

In their 6-3 decision, the Supreme Court opted to discard a 2018 ruling made by San Francisco’s 9th Circuit Court of Appeals. That 9th Circuit’s verdict was a win for environmentalists, too, but was criticized by the justices as too broad.

Nevertheless, the Supreme Court’s decision has been hailed as another victory—in large part because the justices reaffirmed Maui County’s need to comply with the Clean Water Act.

“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 Breyer wrote on behalf of the majority.

Justice Stephen Breyer; image by Collection of the Supreme Court of the United States, Photographer: Steve Petteway, Public domain, via Wikimedia Commons.
Justice Stephen Breyer; image by Collection of the Supreme Court of the United States, Photographer: Steve Petteway, Public domain, via Wikimedia Commons.

“Must the plant’s owner seek an EPA permit before emitting the pollutant?” Breyer asked. “We conclude that [a permitted 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.”

Breyer’s opinion was backed by fellow liberal justices, including Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. It was similarly supported by conservative Chief Justice John Roberts and Trump appointee Brett Kavanaugh.

Their decision, collectively, returns the case to the 9th Circuit, which will apply the “functional equivalency” test to arguments.

Earthjustice attorney David Henkin, who represented environmentalists in the suit, said the Supreme Court’s ruling is a big win.

“This decision is a huge victory for clean water,” Henkin said. “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.”

However, Justices Clarence Thomas and Neil Gorsuch dissented; Justice Samuel Alito also offered an alternative opinion against the majority.

“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.”

“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,” Alito added.

Reuters notes that Maui County’s argument was supported by the Justice Department.

Earlier this week, the Trump administration finalized regulations that limit federal jurisdiction over certain bodies of water. That move, too, is expected to be challenged.


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