WASHINGTON (CN) — Ordering a new hearing in a case that says Hawaii’s Maui County discharged sewage into the Pacific, the Supreme Court outlined a new test Thursday for when the polluting of groundwater requires a federal permit.
Maui’s wastewater-treatment facilities pump roughly 4 million gallons of treated sewage each day into the ground in four wells, but the Pacific Ocean lies just a half-mile away. Eventually the sewage makes its way there through groundwater.
Environmental groups sued the county under the Clean Water Act, pointing to a provision of the law that requires an EPA permit for any addition of a pollutant into “navigable waters.” Setting the stage for millions in fines, a federal judge awarded the environmental groups summary judgment, saying Maui’s sewage-treatment process was functionally equivalent to discharging pollutants into navigable water.
The Ninth Circuit upheld the decision, saying the Clean Water Act requires a permit whenever “pollutants are fairly traceable from the point source to a navigable water.”
Vacating that judgment Thursday, a 6-3 majority found that the Ninth Circuit’s ruling went too far. At the same time, however, the court declined to adopt the reading of the law advanced by the county and the Trump administration.
Earthjustice attorney David Henkin, who represented the environmental groups in the case, called the ruling “a huge victory for clean water” — one that will likely mean Maui County will need a permit for its sewage plan after the lower courts sort out the dispute.
“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,” Henkin said in a statement.
While regulators would make a permit unnecessary if a pollutant had to travel through any amount of groundwater, the majority led by Justice Stephen Breyer held that the Clean Water Act requires a permit both for direct discharges of pollutants into navigable waters and pollutants sent into groundwater that are “the functional equivalent of a direct discharge.”
“We agree that statutory context limits the reach of the statutory phrase ‘from any point source’ to a range of circumstances narrower than that which the Ninth Circuit’s interpretation suggests,” Breyer wrote. “At the same time, it is significantly broader than the total exclusion of all discharges through groundwater described by Maui and the solicitor general.”
Joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan and Brett Kavanaugh, Breyer based the decision in part on the meaning of a single word in the statute — from.
As Breyer wrote, “from” is a word that depends entirely on context. The Ninth Circuit interpreted the word at its most broad, but Breyer said such an interpretation would sweep in a whole range of circumstances Congress could not have intended to cover under an EPA permit, such as pollutants carried into water on the feathers of a bird.
Further giving context to the simple word, the majority noted the structure of the statute leaves significant regulatory authority over groundwater pollution to the states and that Congress expressly rejected an amendment that would have extended the permitting requirement to groundwater.
At the same time, Breyer dismissed the interpretation Maui and the Trump administration advanced as significantly too narrow.
Not requiring a permit if a pollutant has to go through any amount of groundwater before reaching a navigable waterway would make the permitting requirement effectively meaningless, the Clinton appointee found.
He applied the test to a scenario where the owner of a pipe that dumps pollution directly into the ocean could obviate the permitting requirement by simply backing the pipe up a matter of feet, making the pollutant travel through groundwater first.
“We do not see how Congress could have intended to create such a large and obvious loop-hole in one of the key regulatory innovations of the Clean Water Act,” Breyer wrote.
Finding a spot in between the two extremes, Breyer wrote that “time and distance” will be important factors in determining whether a source of pollution is the “functional equivalent of a direct discharge.”
The majority acknowledged its holding will not be the easiest to administer, but said the EPA and states can provide guidance that will help clarify when a permit is required and when it is not.
“In sum, we recognize that a more absolute position, such as the means-of-delivery test or that of the government or that of the Ninth Circuit, may be easier to administer,” Breyer wrote. “But, as we have said, those positions have consequences that are inconsistent with major congressional objectives, as revealed by the statute’s language, structure and purposes.”
Justices Clarence Thomas and Neil Gorsuch criticized Breyer’s majority ruling as straying from the text of the Clean Water Act. The two conservative justices would instead have sided with the Trump administration and Maui, holding that the Clean Water Act requires permits only for the discharge of pollutants directly into navigable waters.
Instead of “from,” which so occupied the majority, Thomas held up “addition” as the key word in the statute. Used in defining what it means to “discharge” a pollutant, the word as Thomas interpreted it suggests the deposit of a pollutant directly from a source, not a more meandering path between the source and the waterway.
“When a point source releases pollutants to groundwater, one would naturally say the groundwater has been augmented with pollutants from the point source,” Thomas wrote. “If the pollutants eventually reach navigable waters, one would not naturally say that the navigable waters have been augmented with pollutants from the point source. The augmentation instead occurs with pollutants from the groundwater.”
Justice Samuel Alito separately attacked the majority opinion as both unworkable and unmoored from 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.”
Similar to Thomas and Gorsuch, Alito would hold a permit is required only when pollution flows directly from the source into navigable waters.
Elbert Lin, an attorney with the Richmond firm Hunton Andrews Kurth, represented Maui in the case.
Neither Lin nor the Justice Department immediately returned a request for comment on the ruling.