Our Perspectives on the Latest Issues
Until last week, I had never been to the Supreme Court of the United States. But an issue that I have been interested in for years had wound its way through the lower courts and was being heard in the highest court in our land, and I wanted to hear it. So, the evening before the argument, I took a train from our Philadelphia offices to Washington, D.C., had an enjoyable evening with family, and went to bed with my alarm clock set for 5:15 a.m.
I got up in the morning, put on my suit, and headed to the Supreme Court arriving by 5:45 a.m. Even then, I was 80th in line! As it gradually got lighter and the morning joggers ran past, the line grew longer and longer. A little before 9 a.m., the first fifty people in line were let into the building and the rest of us remained waiting outside. If no one else was leaving, I wasn’t either. At 9:45 a.m., a few more people were allowed in, and ten minutes later a few more. I was now close to the head of the line—two, maybe three people in front of me.
Then, we were told there were no more seats. The disappointment was frustrating, but we were told if we still wanted to go inside, we could enter for three minutes. After waiting for over four hours, I was going into the court, even if just for three minutes. We passed through security, locked our coats and bags in a locker, went through more security and waited outside the doors to the Supreme Court.
Then, one of the marshals said: “We have some extra seats, do you want to stay for the whole argument?” Of course I did! And just like that, I was in.
The case I heard was County of Maui v. Hawaii Wildlife Fund, in which the Court seeks to answer the question of whether the Clean Water Act requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater. Generally, the Clean Water Act requires a permit for the addition to the nation’s waters of any pollutant that comes “from any point source.” The statute defines a point source broadly including “any discernible, confined and discrete conveyance.” Over the years, what constitutes a pollutant, a point source, and navigable waters have been the subjects of substantial litigation. This was a case I’d been waiting for since it was first filed seven years ago.
In this case, the County of Maui injects its treated wastewater from its sewage treatment plant underground into wells, which flows into the groundwater under the facility. The wastewater then travels through the groundwater to the Pacific Ocean a half-mile away. The County of Maui has never had a Clean Water Act permit for its discharges, although it has always known that pollutants from its wells reach the ocean. It has understood that it was subject to the Clean Water Act’s nonpoint source management program, which is largely left to the states to implement.
Several environmental groups alleged in a citizen suit that the County’s unpermitted discharges of pollutants violated the Clean Water Act’s prohibition of polluting without a permit. The U.S District Court for the District of Hawaii agreed. Interestingly, the court found that both the wells that “indirectly discharge a pollutant into the ocean through a groundwater conduit” as well as the groundwater itself were point sources.
The U.S. Court of Appeals for the 9th Circuit affirmed the lower court’s decision, holding that a permit was required because the “pollutants are fairly traceable from the point source to a navigable water such that the discharge is the functional equivalent of a discharge into the navigable water” and “the pollutant levels reaching navigable water are more than de minimis.”
When this case was argued in front of the Supreme Court last week, everyone seemed to realize just how much was on the line. Both sides warned of the extreme consequences should the Supreme Court rule against them. The County of Maui argued that a ruling that its discharges require a permit may subject millions of pollutant sources across the country (potentially even small individual households) to the Clean Water Act’s permitting requirement for the first time.
Conversely, the environmental groups argued that finding that intervening groundwater eliminates Clean Water Act point source liability would allow polluters to construct a “work around” to Clean Water Act permitting by directing their pipes into groundwater or cutting off the pipes just a few feet inland of a navigable water. The Supreme Court Justices really seemed to understand both the facts of the case and the potential real-life implications of their decision. They sought, as Justice Breyer said, “a standard that will prevent evasion . . . and at the same time doesn’t . . . undercut the groundwater program.”
With all this, I am glad to live in a state that requires permits for discharges of pollutants regardless of whether it is to surface water or groundwater. Under the Pennsylvania Clean Streams Law, “waters of the Commonwealth” covers both surface and groundwaters, such that polluters don’t have the option to evade permitting by discharging to groundwater or cutting a pipe short of discharging to waters of the Commonwealth. Ensuring these permits protect our natural resources and are enforced is what we do at PennFuture.
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