By Maha Joana Cziesielski
On November 6th the Supreme Court of the United States held a hearing for the case County of Maui v. Hawaii Wildlife Fund. The arguments pertained to the question on whether the Clean Water Act requires a permit for the discharge of pollutants when the pollutant has traveled from a point source and through groundwater into navigable waters (see Cziesielski, 2019 for a summary of the case). In the argument process, justices questioned both parties in order to adequately determine the reach of the Clean Water Act (CWA) permitting requirements. As is often the case, especially for cases reaching the Supreme Court, the devil lies in the details: discussions in court primarily focus on analyzing and disseminating the meaning of the law and its specific wording, requiring both sides to provide justifications for their interpretations.
While interpretations of ‘in’ and ‘point source’ were argued, the real textual crux lay in the word ‘from’. As Justice Kavanaugh noted, both sides could have strong arguments for their interpretations. If ‘from’ is interpreted as a pollutant directly discharged from a point source into navigable waters, then the County of Maui would win the hearing since the gallons of pollutants from the wastewater facility would first discharge into groundwater before reaching the Pacific Ocean, therefore not being directly discharged. However, if ‘from’ is interpreted as a pollutant merely having to originate from a known point source, then Hawaii Wildlife Fund and environmental advocacy groups would be in the right as the sewage is originates from the county’s facilities wells.
The counsel for the County of Maui, Elbert Lin, focused on the role of the Clean Water Act itself, pointing out that there are many other statutory in place to protect groundwater. As such, the Lin argued that specific permits of the CWA did not apply. In essence, the suggested interpretation by Lin directly rejected Justice Scalia’s plurality opinion (see Sponberg, 2009), which was questioned by the court. Overall, Justices were concerned with Lin’s interpretation and justifications. Justice Breyer and Kagan feared that the County of Maui’s understanding of the CWA would create a roadmap for anyone wanting to avoid point source pollution.
On the other hand, the counsel for the Hawaii Wildlife Fund, David Henkin, was asked by the Justices to determine limiting principles for the traceability test proposed. The concern of the Justices was that an alternative interpretation, whereby a point source of any form polluting navigable waters falls under the CWA, would require many small sources of pollutants to request NSPD permits. The hypothetical example discussed by the court was that of leaking septic tanks from private residences: if those pollutants would enter navigable waters, would every homeowner require a NSPD permit? Justices Alito, Roberts, Kavanaugh, Breyer and Gorusch expressed deep concerns regarding these potential outcomes. Henkin strove to return the main question to the table, highlighting that groundwater in this case was acting as a loophole.
Overall, the Justices recognized the necessity for clarification of the CWA. Justice Sotomayor noted that since the preventative measures of this law were not followed, something has failed. Both counsels were given ample opportunity to defend their interpretations; their responses will inform the decision making of the Justices. Final court rulings, however, are not expected until spring.
Finally, a particularly noteworthy moment for scientific societies, including ASLO, who submitted a brief as Amici Curiae was the recognition by Justice Breyer for the extended explanation on groundwater connectivity and tracing pollutants back to point source. The direct reference to the brief by a Justice should act as a reminder and encouragement for scientists to continue to strive for communicate their science, ensuring science informed policy creation.