SCOTUS Has Spoken: Kinda Sorta Direct Discharges Need A Permit

Posted on May 1, 2020 by Theodore Garrett

On April 23 the Supreme Court announced its decision in County of Maui v. Hawaii Wildlife Fund (No. 18-260), which addressed the fundamental issue of what is a discharge to navigable waters requiring a permit under the Clean Water Act.  The case arose in the context of the County’s discharges of wastewater to wells that traveled through groundwater to the Pacific Ocean.  Justice Breyer’s opinion for the Court held that a permit is needed when there is the “functional equivalent” of a direct discharge.

The Court’s opinion in Maui reflects an effort to find a “middle ground” that avoids the consequences of an overly broad or overly narrow interpretation of the statute.  But what is a “functional equivalent”?  It’s kinda sorta like a direct discharge.  Its meaning will evolve as applied in particular cases or, as characterized thusly in Justice Alito’s dissent: “That’s your problem. Muddle through as best you can.”  But muddling through is problematic because affected industrial and municipal dischargers, subject to enforcement, need to know whether or not they need Clean Water Act permits.  Unless or until more guidance is provided by EPA, the lower courts or Congress, affected parties will be left to wrestle with the Court’s new “functional equivalent” standard. 

The majority felt compelled to reach a “middle ground” because it found other positions too extreme.  The court rejected the view of the County and the Solicitor General (as amicus) that discharges through groundwater should be excluded, stating that it would open a loophole allowing easy evasion of the statutory provision’s basic purposes (for example by locating a pipe a few yards from a surface water) and was not reasonable in light of the statute’s inclusion of “wells” in the “point source” definition.  The Court also was not satisfied with the Ninth Circuit’s “fairly traceable” criterion, concluding that it might require permits in unexpected circumstances not readily foreseen, such as discharges that reach navigable waters many years after their release and in highly diluted forms. 

So when is a discharge “functionally equivalent”?  Justice Breyer’s opinion states that time and distance will likely be the most important factors in most cases, but other relevant factors may include the nature of the material through which the pollutant travels and the extent to which the pollutant is diluted or chemically changed as it travels. How much time?  How far?  What underground material or dilution might defeat a permit requirement?  The Court is not in a position to say because “there are too many potentially relevant factors applicable to factually different cases for this Court now to use more specific language.” 

Where does that leave us?  The lower courts will need to wrestle with this issue and “provide additional guidance through decisions in individual cases” Justice Bryer states, referring to the “traditional common-law method" as useful even in an era of statutes.  In the meantime, affected parties face uncertainty. 

In a dissent, Justice Thomas (joined by Justice Gorsuch) concludes that the statute excludes anything other than a direct discharge.  Justice Thomas also states that the Court’s opinion “gives almost no guidance, save for a list of seven factors” but does not “commit to whether those factors are the only relevant ones, whether those factors are always relevant, or which factors are the most important.”  Justice Alito also dissented, stating that the Court “makes up a rule that provides no clear guidance and invites arbitrary and inconsistent application.”

One cannot be sanguine that Congress will address this issue.  Interested parties will thus need to monitor how the lower courts and EPA apply the Supreme Court’s new “functional equivalent” standard.

Whiskey In The Punch Bowl At SCOTUS: What’s The Point (Source)?

Posted on December 18, 2019 by Theodore Garrett

If you have wondered if confusion over the jurisdictional reach of the Clean Water Act may drive one to drink, read the transcript in County of Maui v. Hawaii Wildlife Fund, SCOTUS No 18-260, argued on November 6, 2019. 

The issue in Maui is whether a NPDES permit is required for the discharge of pollutants from injection wells that reach the ocean by migrating through groundwater.  The district court and court of appeals held that a permit is required.  The issue has potentially important ramifications for affected parties who discharge pollutants that may eventually migrate to waters of the United States (WOTUS), and interested parties will await the Supreme Court’s decision in Maui to see if it offers a workable solution.

Both sides seem to agree that the relevant question is whether there is a discharge from a point source to WOTUS.  The Solicitor General, perhaps in an early holiday mood, offered a punchbowl analogy: “For example, if at my home I pour whiskey from a bottle into a flask and then I bring the flask to a party at a different location and I pour whiskey into the punch bowl there, nobody would say that I had added whiskey to the punch from the bottle.”  Under this approach, where a pipe discharges to land or groundwater, one would not need a NPDES permit because the discharge was not from a point source to WOTUS. 

Not to be outdone on the analogy front, the Wildlife Fund’s lawyer took the Court shopping for groceries.  “When you buy groceries, you say they came from the store, not from your car, even though that's the last place they were before they entered your house.”  In the same vein, he argued, pollutants in the ocean that came from the county’s injection wells thus require a permit.

The Justices’ comments reflected difficulty in distinguishing discharges requiring a permit and those that do not.  Perhaps tough analogies make for tough decisions.

With respect to the Wildlife Fund’s position, Justice Alito offered the example of “an ordinary family out in the country that has a septic tank, and they buy it from somebody who installs them and they get the building permit that's required by that rural municipality.” What if they discover years later that pollutants are leaking out of the septic tank and migrating to waters of the United States.  Would they be violating the Clean Water Act for lack of a permit?  The Fund’s lawyer, apparently struggling, said that if the homeowner would have no reason to believe the pollutants from the septic tank would get to navigable waters, “they wouldn't be held liable.”  When that didn’t seem to get traction, he moved to the concept of traceability.  But noting that “water does run downhill,” Justice Breyer said that “traceability and causation don't quite seem to do it, “asking plaintiff’s counsel if he had “any sort of fall-back” position “that would cure my worry.”  Justice Gorsuch posited hypothetically that discharges from a septic tank are foreseeable and will end up in waters of the United States: “what limiting principle do you have to offer the Court?”  Justice Alito added that the term "from" could be read very broadly to cover a discharge “ by some means, no matter how remote” that reaches WOTUS: “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.”

The Justices also had problems with the county’s position. Justice Breyer expressed concern with preventing evasion, asking what would happen if one decided to end a pipe a few feet from a river or the ocean.  “Now you know perfectly well that it'll drip down into the ground and it'll be carried out into the navigable water.”  In that case,  Justice Beyer said, “what we have is, I take it, an absolute road map for people who want to avoid the point source regulation.” The county argues that such discharges should be regulated under state groundwater programs.  But Justice Sotomayor found that to be a problem: “Because it presumes the state will regulate, and some states don't.”  Later on, she asked rhetorically: “Why are you doing what you're doing? This is fairly traceable to you in large quantities. The state didn't control you.”  Justice Kagan said that the question isn’t whether there is a back stop, but rather whether the statute requires a permit: “So, here, it's from a point source, which is the well, and it's to navigable waters, which is the ocean, and it's an addition.  How does this statute not apply?”

The Court will discuss these issues in conference and issue its decision in due course.  One might posit that a hydrologic connection should be dispositive, but in Rapanos, the Court split 4-4-1 on the issue of the scope of WOTUS, and the composition of the court has changed since then.  And in the Sackett case, where the plaintiffs prevailed 9-0, the plaintiffs complained of uncertainty whether they needed a permit, a factor which might be of concern to some Justices in the present case.  Will there be a majority opinion for the Court containing a workable “limiting principle?”  Stay tuned.