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.