Courthouse Steps Decision Teleforum: County of Maui, Hawaii v. Hawaii Wildlife Fund

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The Supreme Court released the decision in County of Maui v. Hawaii Wildlife Fund on April 23, 2020. By a vote of 6-3, the judgment of the U.S. Court of Appeals for the Ninth Circuit was vacated, and the case remanded. Justice Breyer's majority opinion was joined by the Chief Justice and Justices Ginsburg, Sotomayor, Kagan, and Kavanaugh.  Justice Kavanaugh filed a concurring opinion.  Justice Thomas dissented, joined by Justices Gorsuch and Alito.  Justice Alito also filed a dissent.

Featuring: 

Glenn Roper, Attorney, Pacific Legal Foundation

 

This call is open to the public - please dial 888-752-3232 to access the call.

 

Event Transcript

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Micah Wallen:  Welcome to The Federalist Society's telephone conference call. This afternoon's topic is a Courthouse Steps Decision Teleforum on County of Maui, Hawaii v. Hawaii Wildlife Fund. My name is Micah Wallen, and I am the Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the expert on today's call.

     
And today we are fortunate to have with us Glenn Roper, who is an attorney for the Pacific Legal Foundation. After Glenn gives his opening remarks, we will then go to audience Q&A. Thank you for sharing with us today. Glenn, the floor is yours.

 

Glenn Roper:  Thank you, Micah. And thank you to The Federalist Society for sponsoring the call and to all who are listening.

 

      County of Maui v. Hawaii Wildlife Fund is an important Clean Water Act case. The decision’s issued about three weeks ago, on April 23rd. And the quick take away is that the Court voted 6-3 to vacate and remand the case to the Ninth Circuit to apply a new permitting standard, which is that a federal permit is required not only for the direct discharge of pollutants into navigable waters but also for discharges that are the functional equivalent of a direct discharge into a navigable water.

 

      Now, both sides can claim victory of sorts. The defendant, Maui County, can say it won because the Court reversed the Ninth Circuit and rejected the broad standard applied by that court. On the other side, the environmental group plaintiffs can say they won because the Supreme Court rejected bright light -- bright-line exclusions argued for by the county and by the United States and left open the possibility that the county may be liable under the Clean Water Act.

 

      Now, I think those who definitely lost with this decision are the property owners and potential defendants who now face a vague, multi-factor balancing test with no clear lines and who will find it challenging, if not impossible, to tell in advance whether a federal permit is required.

 

      Before discussing the decision, let me provide some brief background. Like many local governments, Maui County has long owned a wastewater treatment plant that disposes of treated sewage into underground injection wells hundreds of feet deep. These wells in Maui receive about four million gallons of treated wastewater per day. By design, the wastewater mixes with groundwater which then seeps about half a mile through the aquifer underground toward the Pacific Ocean.

 

      Now, in 2013 the EPA conducted a study where they added tracer dye into the wells. They were able to eventually identify 64% of the dye emerging into the Pacific Ocean from underwater springs taking an average of about 15 months to reach the ocean. So the study, therefore, concluded that 64% of the county's treated wastewater also discharges into the ocean from those underwater springs. In light of that conclusion, a coalition of environmental groups sued the county under the Clean Water Act Citizens Suit Provision for discharging treated wastewater without a federal permit.

 

      Many of those on the call are no doubt familiar with the Clean Water Act, but here's a quick overview. The main provision at issue is a requirement for a permit for "any addition of any pollutant to navigable waters from any point source." There are three important defined terms in that phrase. First, pollutant is broadly defined to include what most people think of as pollution like sewage or chemical waste. But it also includes things like rocks, sand, and even heat. Second, a point source is defined as any discernable, confined, and discrete conveyance from which pollutants are or may be discharged. It specifically includes things like pipes, ditches, channels, wells, and containers. And finally, the term navigable water is defined as "the waters of the United States, including the territorial seas."

 

      So, in this case, there was no dispute that Maui County's treated wastewater is a pollutant, that the injection wells are point sources, and that the Pacific Ocean is a navigable water. Instead, the question facing the Court was whether a federal permit is required when a pollutant is discharged from a point source, not into a navigable water, but into groundwater that eventually enters a navigable water. Is that an addition of a pollutant to navigable waters from a point source?

 

      Well, the circuit courts had developed conflicting tests for how to address that question. The Fourth Circuit held the -- a permit is required if there is a direct hydrological connection to a navigable water. The Sixth Circuit held that a permit is not required for discharges into groundwater. And the Ninth Circuit, in this case, held that a permit is required if the pollutant is fairly traceable from the point source to a navigable water. So then onto the decision.

 

      Justice Breyer wrote the majority opinion, joined by Chief Justice Roberts, and by Justices Ginsburg, Sotomayor, Kagan, and Kavanaugh. I would describe the opinion, overall, as purposive. And by that, I mean it focused on selecting an interpretation of the statute that would support Congress's purpose in enacting the Clean Water Act. The legislative objective listed in the statute is to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters."

 

      So Justice Breyer's majority opinion sought to divide the standard that would make it harder for polluters to avoid permitting requirements. Consistent with that goal, and with concerns that he and other of the Justices expressed at oral argument, the majority opinion frequently talks about avoiding loopholes and evasion of the statute's purposes. Although it was focused on that purpose, the majority opinion did examine the text. It noted that the key textual dispute is added to the meaning of the word "from." The Clean Water Act prohibits the unpermitted discharge of pollutants to navigable waters from a point source. But how close of a connection does there need to be between the point source and the navigable water? That's the question.

 

      As Justice Breyer's opinion notes, the answer is not necessarily obvious because the word "from" is context-dependent. For example, he said that if someone asks, "Where did you come from?" it usually would not be appropriate to answer the country in which you were born. But that might be the right answer depending on the context. So the party suggested three different ways to read this language in the Clean Water Act.

 

      The environmental groups plaintiffs basically agreed with the Ninth Circuit that permitting should be required if a pollutant reaching navigable water is fairly traceable back to a point source regardless of what the pollutant does in between. The Plaintiff's only suggested restriction was a proximate cause requirement.

 

      In contrast, the county argued that a permit should only be required if the point source was the direct conveyance, or means of delivering the pollutant, into the navigable water. This is a bright-line test such that if there's any non-point source between the discharge and the navigable water, no permit would be required.

 

      And then third, the Solicitor General as amicus argued for a slightly different interpretation. One that the EPA adopted last year in an interpretive statement. The EPA concluded, and the Solicitor General argued, that a discharge into groundwater specifically breaks the causal chain, and eliminates the need for a permit. So we might call this the groundwater is different approach.

 

      Justice Breyer's opinion rejected all three tests. It held that the Ninth Circuit's traceability test is too broad because virtually all water eventually makes its way to a navigable water. Given scientific advances, a traceability standard might require permits for pollutants that take many years to reach navigable water and arrive in highly diluted forms. The majority didn't think that the proximate cause limitation would help very much because that standard is not part of this statute. It comes from tort law, and it's based primarily on policy considerations.

 

      In addition to the breadth of the Ninth Circuit standard, the majority noted three other reasons for rejecting it. First, the structure of the statute shows that Congress intended to leave responsibility for groundwater pollution and for non-point source pollution to the states rather than the federal government. Second, the legislative history—for those who pay attention to such things—showed that Congress rejected several proposals to give the EPA permitting authority over groundwater. And third, the Court looked to past EPA practice which had opposed permitting requirements for discharges that take a long time to reach navigable water.

 

      So the Court rejected the Ninth Circuit's test that the plaintiffs had advanced. But Justice Breyer also rejected the county's and Solicitor General's test as too narrow. Recall that the county argued that the point source must be what conveys the pollutant into the navigable water for the permit to be required. Echoing concerns from oral argument, Justice Breyer wrote that that test would just be too easy to circumvent. Such as by shifting a pipe back a few yards from a navigable water so that pollutants released by the pipe travel first through groundwater, then enter the navigable water. The majority called this a large and obvious loophole and concluded Congress could not have intended that interpretation.  

 

      The Court also rejected the Solicitor General's groundwater is different approach. It noted that the EPA had not asked for Chevron deference to its interpretation. And said that even though the Court often pays particular attention to an agency's views, because the EPA's reading would open up the same loophole, that interpretation "is neither persuasive nor reasonable."

 

      So after tossing aside all of the parties' positions, the majority tried to find a middle ground. So as I mentioned, it settled on the standard that an indirect discharge requires a permit if it is the "functional equivalent of a direct discharge." Now, the majority recognized that as a rather vague test, but it included that -- it concluded that "there are too many potentially relevant factors applicable to factually different cases for the Court to use more specific language." So it felt it just had to have a general statement.

 

      It tried to put some meat on the test by identifying a list of seven non-exclusive factors that courts could consider depending on the case. These include the time it takes for the discharge to go from the point source to the navigable waters, the distance from the point source to navigable waters, the nature of the material that the pollutant travels through, how much the pollutant changes or dilutes as it travels, how much of the pollutant if it enters the navigable water compared to the amount that leaves the point source, how and where the pollutant enters navigable waters, and finally how much the pollutant has maintained its specific identity while it traveled.

 

      Now, the majority said that the first two factors, time and distance, will usually be the two most important factors. It also emphasized that there could be other relevant factors. But it did not explain how courts are to balance or apply any of the factors. Instead, Justice Breyer referred, again, to the purpose of the Clean Water Act, stating that the job of reviewing courts will be, "To advance in a manner consistent with the statutes language, the statutory purposes that Congress sought to achieve." In other words, permit decisions should neither undermine state regulation of groundwater nor make it too easy to circumvent federal regulatory objectives.

 

      Justice Breyer noted two other potential sources of guidance. First, courts can provide common law direction to decisions in specific cases. And second, the EPA can provide administrative guidance through issuing permits and through promulgating rules. Finally, the majority recognized that property owners risk severe penalties from aggressive Clean Water Act enforcement, especially as to injection wells like Maui County's, and the more than 20 million septic systems used in American homes.

 

      But the majority wasn't too concerned about those because EPA can develop tools to mitigate those harms and because district court judges can "mitigate any hardship or injustice when they apply the statues penalty provisions." The majority said that it expects District Court Judges to exercise their discretion and to calibrate the act's penalties in cases where a party could reasonably have thought that a permit was not required. So that's the majority opinion.

 

      Justice Kavanaugh filed a concurring opinion, a short one. He wrote separately just to emphasize three things. First, in his view, the majority interpretation is consistent with Justice Scalia's plurality opinion in a 2006 decision Rapanos v. United States. Second, he argued that the vagueness of the functional equivalent test is due to Congress's statutory text not to the majority opinion. And then third, he emphasized that although many factors may be relevant, again, time and distance are usually going to be the most important factors.

 

      There were also two dissenting opinions. First, Justice Thomas dissented, joined by Justice Gorsuch. He concluded that the text and structure of the Clean Water Act only require permits for the direct release of pollutants from a point source to a navigable water. Similar to the position that Maui County had advocated. He disagreed with the majority's claim that this position creates a loophole and argued instead that it is actually the most consistent with Congress's commerce power under which the Clean Water Act was presumably passed because it has a more direct connection to navigable waters.

     

      He also criticizes the majority's multi-factor test as doing little to explain when a permit will be required. And although he agrees that the EPA's interpretive guidance should not be granted a Chevron deference, he doubts that the EPA will be able to clarify the Court's standard through administrative guidance. Especially given that it has shifted positions multiple times in the recent past.

 

      Justice Alito wrote a much longer dissent, nearly as long as the majority opinion. In his view, the majority "makes up a rule that provides no clear guidance and invites arbitrary and inconsistent application." He thinks that the functional equivalent test, which is not language used anywhere in the statute, is simply not a plausible interpretation of the statutory language.

     

      And he points out an absurdity of the majority's position. It means that a pollutant leaving a point source into groundwater is from the point source for some portion of its journey, but once it has traveled far enough or enough time has elapsed, it is no longer from the point source and is instead from a non-point source. As for the majority's list of factors, he criticizes the majority for adopting a nebulous standard, enumerating a non-exhaustive list of potentially relevant factors, and washing its hands of the problem.

 

      He foresees that in nearly every case "dischargers will be able to argue that the Court's multi-factor test does not require a permit, proponents will be able to make the opposite argument, regulars will be able to justify whatever result they prefer in a particular case, and judges will be left at sea."

 

      Though before I open it up for questions, let me make three quick observations. First, after what they said at oral argument, I was surprised that Chief Justice Roberts and Justice Kavanaugh joined the majority opinion. Chief Justice Roberts had been explicitly skeptical about the functional equivalent test, which he called just as vague as the Ninth Circuit's traceability test. I wonder if maybe once Justice Kavanaugh decided to join with the more liberal Justice, the Chief also joined just to keep it from being a 5-4 decision. But that's total speculation on my part.

 

      As for Justice Kavanaugh, at oral argument, he had emphasized the need for a clear line that would allow property owners to know in advance whether a permit is required. But the majority's test is obviously not anything like a clear line. So he appears to have just concluded that the vagueness was Congress's fault.

 

      Second, I was struck by the fact that many of the examples the Court used in trying to interpret the word "from" involved the movement of people. For example, Justice Breyer talked about a man who had arrived at a hotel who could be considered to have come from the train station, from Baltimore, from Europe, from any two of those three places, or from all three. But describing where people come from in their journeys is not necessarily the best analogy given that a person makes intentional decisions at various points in the journey, as opposed to water that is simply carried by gravity, and other natural processes, so it's arguably not an apt analogy.

 

      And then third, I am much more concerned than the majority was about the risks that their decision poses. It provides little clarity and will make it difficult for landowners and others to accurately predict whether they need to get permits or whether they will face penalties. For example, let's take three of the Court's factors and apply them to the facts in this case.

 

      As for time, according to the EPA study, it takes an average of 15 months for wastewater put into the well to reach the Pacific Ocean. But it takes a period of about four years for it all to arrive. Is that short enough to require a permit? The Court doesn't say, and there's just no way to tell from its decision.

 

      As for distance, the distance factor, the majority opinion talks about the extremes. Its test would exclude discharges that travel hundreds of miles to get to a navigable water, and just a few feet isn't enough. But how about here where it travels about half a mile. Is that short enough? Again, there's no answer.

 

      A third factor is the amount of the discharge that enters the navigable water compared to how much was discharged from the point source. Here the EPA study concluded that 64 percent of the wastewater makes it to the ocean. Is that enough? The majority opinion doesn't answer these questions or explain how a court would even begin to do this balancing.

 

      So perhaps the EPA will give some guidance. And we can always hope that Congress will amend the statute. But my worry is that judicial decisions will be all over the map in trying to apply the new functional equivalent standard.

 

      And with that, Micah, I'll go ahead and open it up for questions.

     

Micah Wallen:  We have a question lined up already. So we'll go ahead, and we'll go to our first caller.

 

Don van der Vaart:  Yeah. Thanks for that great summary. My name is van der Vaart, Don van der Vaart. I have two questions -- kind of quick. One is, do you have any thoughts on whether the permit shield that's provided under the Clean Water Act, specifically for NPDES, might give some protection for existing landowners or facilities that don't have a permit? And second, is there any hope for a constitutional challenge now, because clearly, these discharges are not going into navigable waters.

 

Glenn Roper:  Thank you. Those are -- those are great questions. As for -- I'll take the second one first -- constitutional challenge. You know, I'm always hopeful that the Court will see fit to impose some restrictions based on the commerce power and the fact that these are not going directly into navigable waters. I think there's some uncertainty right now even as to what a navigable water is with the Waters of the United States litigation that's ongoing.

 

      The EPA has recently issued some new regulations. Those regulations are subject to challenge as to what constitutes a navigable water, a Water of the United States. And over the next few years, hopefully, we'll get some additional clarity there. Given past cases, I haven't seen a whole lot of appetite of the Court for addressing these kinds of constitutional challenges. And given the six-member majority here, I really don't see that happening in the near term.

 

      And then as for the permit shield for landowners that are in place, again, we're really just going to have to wait and see how courts try to apply this. I think the EPA is not going to -- at least this side of the election -- is probably not going to be aggressively trying to enforce this permitting program against ordinary landowners. Citizen's suits may be brought, and we're just going to have to wait and see how courts flesh those out and apply these requirements.

 

Micah Wallen:  We'll now move to our next caller. For everyone [who would] like to join the queue, just press star and then pound.

 

Caller 2:  Hey Glenn, thanks for doing this. Can you comment on -- do you think this ruling says anything more broadly about the Supreme Court's environmental jurisprudence?

 

Glenn Roper:  That's a good question. Nothing immediately comes to mind as to what this could say about its environmental jurisprudence. I think it's a little concerning, to me personally, the amount that the Court is willing to defer to the EPA here. I feel like the Court is just putting out this vague standard with the hope that the EPA will come in and pick up the pieces and provide some guidance.

 

      That's consistent with what Justice Breyer said at oral argument. He talked a lot about how he thinks it should be left for the agency to regulate. And apparently, he was able to get a sizable majority of the Court to go along with him on that. But I hesitate to speculate more broadly than that although it does seem to indicate an openness to letting agencies take the lead.

 

Micah Wallen:  Alright. We'll now move to our next caller in the queue.

 

Damien Schiff:  Hi, Glenn. This is Damien Schiff from PLF. Great presentation. Do you see anything, in either the majority or concurring or dissenting opinions, that might indicate how the Justices would approach the statutory navigable waters question, say should the new Trump administration role ultimately be presenting again for Supreme Court review?

 

Glenn Roper:  Yeah. They didn't really talk about the navigable waters here -- the definition. It wasn't really touched on that I saw in the different opinions. It was pretty clear that the Pacific Ocean is a navigable water under anybody's definition. It just really wasn't -- it really didn't come up.

 

      It wasn't a -- because I guess because it was so clearly navigable waters here the parties didn't talk much about what that might mean. Now, obviously, the way that the rule is applied and the way that the navigable waters are -- how that term is ultimately defined will have a -- could have a large effect on how this decision is applied. But I didn't see the opinions directly addressing it.

 

Micah Wallen:  Glenn, next, the question is -- well, I was wondering, do you expect, or is there anything that Congress, the EPA might do in response of this decision?

 

Glenn Roper:  That's a good question, Micah. And I think the EPA has to do something. They won't be able to just leave this hanging out there. Now, it's a little tricky in an election year both to have agency getting involved and for Congress to do much. I would hope that there'd be enough kind of bipartisan consensus on a need to give some clarity to landowners. Particularly, the millions of Americans that have septic systems are going to need some clarity as to is permitting required, is there an exclusion for that.

 

      And I think it would behoove Congress to get together and enact something clearly addressing that piece of it, at least, if not more broadly trying to clarify the standard. But, again, in an election year, it's hard to see that happening. What I expect will happen is that at some point in the next few months, we'll get some interim guidance from the EPA, a placeholder of sorts, to respond to this decision. But then we'll be waiting at least until after the election if not well into the next couple of years before we start getting even a proposed EPA rule, let alone a final decision from the agency.

 

Micah Wallen:  And we have two other callers who've joined the queue. So we'll move to our next caller.

 

Don van der Vaart:  Yes, this is Don van der Vaart again to follow up on the facts of this case. I heard you say that it took 15 months for the majority of this discharge to make its way to the Pacific Ocean. Did it describe at all --- that was a tracer --- did it describe at all the level of so-called pollution at this point? I presume this was the discharge from the wastewater treatment plant, so it's already pretty clean, and then it goes through groundwater for 15 months where it gets -- the nutrients get gobbled up by bacteria, whatever. So was there any analysis to show that, in fact, it still was pollutant, or what level of conversion took place?

 

Glenn Roper:  I can't remember the details specifically from the study. I know this is partially treated wastewater, and they concluded that 64 percent of it entered the ocean. Now, I think this is a factual dispute that'll go back down on remand as to whether -- and to what extent it's actually polluting and still causing problems. I think, at this stage, the parties just took it up on the issue of whether a permit is required at all.

 

      And a more careful look at the study, which is available online, there may be some more discussion about that. I think the tracer dye study was really just focused on trying to figure out where does this stuff go and how much of it is -- can we find -- how much of it is tracing its way back. But I think it still remains to be decided in this case and to be argued about, as to whether this is a pollutant and what sort of effect it's having on the ocean environment.

 

Micah Wallen:  Alright. Well, we'll now go to our next caller in the queue.

 

Andy Yurcho (sp):  This is Andy Yurcho calling, presently from California. Thanks for [the] great presentation, Glenn. And my question is, how do you see this decision applying to stormwater discharge?

 

      There [are] currently several issues on the East Coast where the Act itself applies to discharge of stormwater into tributaries and streams leading to navigable waterways, and the -- specifically Chesapeake Bay, and discharges into the Susquehanna River from -- or from tributaries and streams. And local authorities have applied a stormwater fee to certain businesses, residences, and others. It's not an across the board thing. That is currently being challenged in the courts. You see this decision having any effect on some of the pending litigation regarding that stormwater fee?

 

Glenn Roper:  Yeah. Good question. I'm not specifically familiar with that litigation and the fee of what's involved. This decision is going to apply to point sources. So stormwater that is just sort of generally running along the ground is not going to be affected. Now, if channeled and becomes a point source, then if it makes it into the navigable water through a groundwater, then it is going to be affected absent a general EPA permit governing stormwater. So I can't comment on the specific litigation, other than to say to the extent that it becomes a point source that the storm waters gather into a point source, this could be relevant in that circumstance. Sorry, I don't have a better answer to that question.

 

Micah Wallen:  Alright. Not seeing any other questions left in the queue, I'll offer one last call for any other questions. If you'd like to join the queue, just press star and then pound, and in the meantime, Glenn, is there anything else you'd like to cover, or any closing remarks for us today?

 

Glenn Roper:  Yeah. I should have mentioned that the Fourth Circuit case that I talked about had also been held by the Court, and it has now been GVR’d—granted, vacated, and remanded—back to the Fourth Circuit. So we now have the Ninth Circuit with the Maui County case, the Fourth Circuit with the Kinder Morgan case, so we will see circuit courts and potentially other district courts already trying to grapple with what's going to happen. I assume they will call for additional briefing on how this standard is to be applied. And we may -- as soon as those courts issue decisions we may start seeing some implementation of this standard already.

 

      But, again, given how vague it is, it wouldn't surprise me at all if we start seeing inconsistent decisions issued by district and circuit courts. And even the possibility that the Court will have to grapple, again, with what its decision means in a couple of years unless Congress or the EPA can get involved.

 

Micah Wallen:  Alright. Well, on behalf of The Federalist Society, I'd like to thank our expert for the benefit of his valuable time and expertise today. We welcome listener feedback by email at info@fedsoc.org. Thank you all for joining us. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.