Join us for a Courthouse Steps teleforum on the oral argument for County of Maui, Hawaii v. Hawaii Wildlife Fund. Glenn Roper will examine how the arguments played out, give an indication of where the Court may be going, and discuss how the Supreme Court decision in this case will affect regulated parties in the future.
Glenn E. Roper, Attorney, Pacific Legal Foundation
Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.
Operator: Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Environmental Law & Property Rights Practice Group, was recorded on Friday, November 8, 2019, during a live teleforum conference call held exclusively for Federalist Society members.
Wesley Hodges: Welcome to The Federalist Society's Teleforum Conference call. This afternoon's topic is a Courthouse Steps Oral Argument teleforum on the County of Maui, Hawaii v. Hawaii Wildlife Fund. My name is Wesley Hodges, and I'm the Associate 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.
Today we are very fortunate to have with us Mr. Glenn Roper, who is an attorney with the Pacific Legal Foundation. After our speaker gives his remarks, we will have time for your questions, so please keep in mind what questions you may have for this case, its oral arguments, or for our speaker.
Thank you very much for sharing with us today. Glenn, the floor is yours.
Glenn Roper: Thank you and thank you to The Federalist Society for sponsoring this teleforum. On November 6, 2019, the Supreme Court heard oral argument in County of Maui v Hawaii Wildlife Fund. This is a very significant environmental case and most of our listeners are probably familiar with it. But I'll first provide a little bit of background, then I'll discuss what happened at the argument, plan to generally go, more or less, sequentially through the argument, but I'll try to identify common themes as they emerge, and then I'll open it up for any questions from the audience.
So first, as to background, this case involves a scope of the Clean Water Act and that act requires a federal permit for "any addition of any pollutant to navigable waters from any point source." The question, in this case, is whether a federal permit is required when a pollutant is discharged from a point source, not directly into a navigable water, but into groundwater that eventually seeps into the navigable water.
So just to quickly summarize the facts, Maui County owns a wastewater treatment plant that disposes of millions of gallons of treated sewage into underground injection wells. By design, the wastewater mixes with groundwater at the bottom of the wells and seeps through the aquaphor toward the ocean.
In 2013, the EPA conducted a study where they added tracer dye into the wells and they were able to, eventually, identify about 2/3 of the dye emerging into the Pacific Ocean about half a mile from the treatment plant. It took an average of about 15 months for the dye to reach the ocean.
So in light of that test, a coalition of environmental groups sued the county under the Clean Water Acts Citizen Suit Provision for operating its wastewater treatment plant without a federal Clean Water Act permit.
Circuit courts are divided on the right way to handle this specific question and they've applied at least three different tests. First, the Ninth Circuit, in this case, held that Maui County was required to have a federal permit. The test it applied is that a permit is required when "pollutants are fairly traceable from a point source to a navigable water such that the discharge is the functional equivalent of a discharge into the navigable water." Now, I've never been quite sure whether that is one test or two different ones, and as we'll see some of the questioning showed that justices weren't entirely sure either.
Second, in a different case, the Kinder Morgan case, the Fourth Circuit agreed that there could be liability for discharges to groundwater, but it applied a different test. Concluding that a permit is required, if there is a "direct hydrological connection between groundwater and navigable waters."
And then, on the other side, the Sixth Circuit disagreed with the Fourth and Ninth Circuits and held that federal permits are not required for discharges into groundwater but are only required for pollution that makes its way to a navigable water by virtue of a point source conveyance. Essentially, the position that Maui County argues for, in this case.
So as we can see, there are three different tests proposed by the circuit courts and much of the oral argument, in this case, before the Supreme Court focused on what the proper test to apply is.
So let's go ahead and turn to Wednesday's oral argument. First, Elbert Lin, the former Solicitor General of West Virginia, argued the case for the County. He emphasized a couple of things in his opening remarks. First, what is at stake is not whether Maui County's disposal of wastewater is regulated at all. Everyone agrees that a number of state and federal environmental programs apply. Rather, the question is whether it is regulated under the Clean Water Act's point source program or under its nonpoint source program.
Second, Mr. Lin emphasized the County's textual argument. Which is that the Clean Water Act's definition of point source as a conveyance shows that the key question is not where a pollutant comes from, or originates, but how it reaches navigable waters. So in the County's view, you look at the thing that actually delivers the pollutant into the navigable water. If it's a point source, then a permit is required, otherwise, it's not.
And then third, he emphasized the importance of predictability. Given the strict penalties for non-compliance, regulated parties should be able to know in advance whether they have to seek a permit. And several of the justices picked up on that point in later questioning.
So Chief Justice Roberts asked the first question, and in fact, he was the most active questioner throughout the day for both sides. He began by trying to pin down the County's test, asking whether it means that any intervention of groundwater between a point source and a navigable water makes the point source program inapplicable. Whether the point source is just leaking pollutants into the groundwater or forcefully expelling them into the groundwater.
And Mr. Lin agreed that any intervention of groundwater would make the point source program inapplicable. He held firm to his textual argument, where you just look at what delivers the pollutants to the navigable water.
Justice Breyer then took up the questioning. And his primary concerns seemed to be whether the County's test would allow polluters to evade permitting requirements by redirecting pollution into groundwater. In his typical, pragmatic fashion, rather than parsing the text of the Clean Water Act, Justice Breyer was focused on, as he put it, finding a standard that would prevent evasion.
The County's position, in his view, would provide "an absolute roadmap for people who want to avoid point source regulation." That is, they could just end their pipe, or other source of pollution before reaching navigable water, or redirect it into the groundwater. And that was his concern.
Justice Kagan picked up on that same concern, asking whether the County's standard would mean that "nobody would ever have to go through the process of getting a permit" if they knew that they could just do something like what Justice Breyer was suggesting, stop the pipe five feet before the ocean.
In responding to that concern, Mr. Lin disagreed with using the term, evasion, going back to the fact that even where the federal point source program doesn’t apply, other state and federal laws do. So redirecting pollution into the groundwater isn't a way to avoid regulation, and he, in fact, cited Hawaii laws that would prevent the exact hypothetical of cutting off a pipe shortly before a navigable water.
Justice Sotomayor jumped in, at that point, expressing concern that the County's position presumes the state will regulate, but that some states don't. And she, here, seemed to be echoing comments made in a brief filed by the State of Maryland, and several other states, making that exact argument, that some states regulate differently or more forcefully than others.
Now, Mr. Lin responded that there's no serious concern that states will just allow, what he called, a “Wild West,” where there is no regulation of point source pollution. He listed three reasons for that. First, the Clean Water Act requires states to have a nonpoint source management program. Second, there are millions of dollars in grants and incentives that encourage states to regulate. And then third, the Clean Water Act has a water quality backstop where it requires states to report on water quality.
Now at that point, the discussion, the argument, turned to the text of the statute. In a complex and important statute, like the Clean Water Act, that uses defined terms like point source and navigable waters, it's a little surprising that much of the textual discussion, instead, focused on a simple preposition, the word "from." The County argues that because pollution has to be added "from" a point source, which is defined as a conveyance, a pollutant only qualifies if a point source is what conveys the pollutant into the navigable water. That's what the County argues "from" means here.
Now, in contrast, the plaintiffs have argued that if a pollutant is discharged by a point source and ends up in navigable waters, regardless of what happens in between, then it is from the point source. Now, Justice Kagan, in getting to the text, she really echoed the plaintiff's argument, saying "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?" And as to the specific word, "from," Justice Kagan generated the first laughter of the day by asking whether the plaintiff's argument wasn't a normal way of reading the word "from." In other words, “to decide,” these are her words, “to decide whether something is from something else, you have to look at whether it's from something else.”
Justice Kavanaugh chimed in, indicating that he thought both sides made good arguments as to meaning of the word "from." And he asked Mr. Lin, what other tools the Court should look at to decide which interpretation to go with? Mr. Lin pointed to two things, the structure and the context of the Clean Water Act.
As to structure, he argued that the plaintiffs' position would, essentially, read the Nonpoint Source Program out of the statute because most things are initiated from a point source, if they end up in navigable water, under the plaintiff’s position, that's good enough.
As to context, he reiterated that the Clean Water Act imposes harsh civil and criminal penalties that can total more than $50,000 a day. In light of that, he argued, Congress would be expected to impose requirements that could be determined in advance by looking at the conveyance, rather than basing liability on an after-the-fact analysis of traceability.
Justice Alito was the final justice to chime in during the petitioner's presentation. He expressed concern about whether there's any limiting principle to the plaintiff’s position and expressed doubt as to whether their standard can be found in the text and is workable. But because those questions really go more to the plaintiff’s position, I'll talk about those in a moment.
So after Mr. Lin presented his opening argument, the second attorney to argue was Deputy Solicitor General Malcolm Stewart for the United States. The United States submitted an amicus brief in support of the County. But it made a slightly different argument. Rather than looking at the conveyance that actually gets it into the navigable water, the United States' argument might be described as the “groundwater is different approach.” Put simply, the United States argued that Congress intended that groundwater breaks the causal chain such that a permit is not required for pollutants that enter groundwater. Mr. Stewart put forth what is probably the most memorable example of the day, the whiskey example.
He said, if I, at my home, pour whiskey from a bottle into a flask and then bring the flask to a party at a different location and pour whiskey into the punch bowl from the flask, nobody would say that I'd added whiskey to the punch from the bottle. In contrast, bringing the bottle to the party, if you pour it from a few inches above the whiskey, or through a funnel, in ordinary parlance, we wouldn't say that simply because there was some spatial gap between the bottle and the punch, therefore I didn't add it from the bottle to the punch. So in his analogy, the flask would act as groundwater and if you have that intervening flask, or groundwater, you wouldn't say that the whiskey was added to the punch from the original bottle. Instead, you'd say it was from the flask. So under the Ninth Circuit test, he argued, the whiskey would be traceable to the bottle, even if it went through the flask, which can't be what Congress intended.
Now, several of the justices asked Mr. Stewart about the limits of the United States’ position. The Chief began by asking whether any little bit of groundwater is enough, even two inches of groundwater. And then, consistent with his bright-line position, Mr. Stewart agreed that even two inches would be enough. However, under the United States view, if the pollutant travels over land, instead of through groundwater, then permits would be required and that seems to be the major distinction between the County and the United States.
Justices Kagan and Sotomayor asked Mr. Stewart about the possibility of evasion, that same concern that had been brought up with Mr. Lin, asking whether his position would allow parties to avoid permitting just by putting pipes directly into the groundwater. And like Mr. Lin, Mr. Stewart for the United States focused on the other statutes and state regulation that apply to groundwater. He emphasized that the point source permitting program is not intended as a cure-all, and so it's okay if it doesn't apply in every situation.
Now, Justice Kagan quarreled with his argument a little bit, responding that the Plaintiffs' position, which he appeared to support, would still leave a large sphere of activity that the federal government is not touching. It would just mean that when the federal government permitting program applies to point sources, it applies to those point sources regardless of whether it goes two inches underground.
Now, Justice Breyer asked the final questions to Mr. Stewart, and here, he laid out, what I think appears to be his proposed approach. And it's kind of different than any of the other standards. Justice Breyer seems to want to give the EPA maximum flexibility to write regulations, setting the rules for what is covered. So rather than the fairly traceable position adopted by the Ninth Circuit, he focused on the second part of the Ninth Circuit's test which asks whether a discharge into groundwater is the "functional equivalent" of a direct discharge into the navigable water.
So Justice Breyer asked Mr. Stewart, what if we set that as the standard whether it's a functional equivalent, and then let the EPA conduct rulemaking to decide exactly what that is going to mean? Mr. Steward initially expressed some skepticism about what that test might mean, but ultimately agreed that if the United States had rulemaking authority, and could flesh it out, it would be helpful. So that was the end of the United States’ argument.
Finally, David Henkin took the stand on behalf of the environmental plaintiffs. He focused, in his initial remarks, on the fact that the text of the Clean Water Act doesn't include the word "directly." That is, it doesn't just prohibit discharges directly into navigable waters, but all discharges to navigable waters from any point source.
As to the meaning of the word "from," he used a different example, the example of groceries. He said, "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." He also explained that the EPA had interpreted the Clean Water Act, consistent with his view, for 30 years without the parade of horribles that the County argued about happening. And finally, echoing some of the earlier justices' questions, he noted the potential, under the County's argument, for evasion by large-scale polluters who could just put their pipes into the groundwater.
As with the other two lawyers, the Chief Justice was the first to ask questions. And he focused on asking, what is the limiting principle of the plaintiff’s argument? Now, Mr. Henkin pointed to two things: traceability and proximate cause. Now, the Chief took issue with both of these supposed limitations. As to traceability, he talked about that being just a technological issue and a question of how sophisticated the instruments are that can trace the pollutants. So as a reminder, in this case, the EPA conducted a tracer dye study, where they put dye into the wells and then they were able to trace those emerging into the ocean. So the Chief was concerned that because it was just a technology issue, that's not going to impose a significant limitation.
Now as to proximate cause, he called that “notoriously manipulable” and asked whether the plaintiff could provide any examples of where pollution is added to groundwater that makes its way to the ocean, but where there would be no liability due to an intervening cause? Now, I don't believe that Mr. Henkin fully responded to that question, as far as I can tell. But he did cite a case where the EPA concluded that discharges from a mine, where it would take them 60 to 400 years to get to a navigable water, that was just too far and that would cut off the causal chain.
At that point, Justice Ginsburg jumped in to ask about the Fourth Circuit test, which asks whether there's a direct hydrological connection between the discharge and the navigable water. She asked Mr. Henkin what he thought of applying that test. Now, Mr. Henkin explained that he thought his test is narrower because it includes the concept of proximate causation and foreseeability, not just whether there's a factual connection.
Justice Alito responded at that point, questioning whether there's any practical difference between the two. And he asked whether there is ever a case where there is traceability, but not foreseeability. Now, Mr. Henkin essentially conceded that's correct, that there's no distinction between traceability and foreseeability in this context.
At that point, the discussion turned to an example that featured, prominently in the brief, and that of septic tanks. Justice Alito asked whether an ordinary family out in the country that buys a septic tank, following all the appropriate permits, could be liable under the Clean Water Act if, 10 years later, the septic tank starts to leach pollutants that make their way to navigable waters. Now, Mr. Henkin argued, first, that a properly installed septic tank wouldn't discharge pollution, at all. But both Justices Alito and Gorsuch pushed back on that and tried to nail down a straight answer as to whether a homeowner could be liable if it did leach out of a septic tank. Now Mr. Henkin's response was, again, to focus on traceability, stating that where you have one septic tank, you'll usually have multiple septic tanks in an area, and if you can't trace pollutants back to a particular septic tank, then no permit would be required.
At this point, Justice Breyer jumped in again. He echoed concern about whether the plaintiff’s test is just too broad and would put all kinds of people in the position of having to get a permit. He stated that the plaintiff’s proposed traceability and causation tests "seem to say the sky is the limit." And he again, here, suggested his functional equivalence test, where the Court would announce a broad functional equivalent standard and then let the EPA write the rules. Now, Mr. Henkin agreed that his side could embrace that test.
At that point, the Chief Justice jumped in and vigorously questioned what the functional equivalent test would actually mean. He argued that it was just as vague as a fairly traceable test and wouldn't add much clarity or certainty. At that point, Justice Kagan stepped in with, what I view as some friendly questions, about how traceability would apply to septic tanks and whether the inability to trace pollutants back to a specific septic tank would mean that regular homeowners just aren't at risk of liability.
Now there was some vigorous back and forth between Justice Kagan and the Chief Justice, even at some point talking directly to each other and skipping over the advocate, about proximate cause and how that would work. For example, the Chief Justice said, well I think it would be worse if you had 100 potential polluters with septic tanks, but you're saying in that situation, you wouldn't have traceability and so you wouldn't have any liability. Whereas if you had just one homeowner with a septic tank, you would have liability. And Justice Kagan tried to help the advocate by talking about, well isn't that how proximate cause generally works in a variety of situations.
After that colloquy, Justice Kavanaugh broke in. He reiterated concerns about the cost of the permitting programs and about whether the plaintiff’s position would lead to uncertainty and transforming the federal/state balance. He, here, emphasized the citizen suit provision of the Clean Water Act and how that can put parties at risk, even if the federal government isn't seeking enforcement. And he emphasized that the standard needs to be something that's objectively clear on the front end, and not just something that you figure out out of a lot of litigation. Mr. Henkin tried to assuage his concerns by indicating that, to establish his test, the traceability and foreseeability, you really would need a big discharger, not a small homeowner.
Justice Alito ended the questioning of the plaintiff’s counsel. He asked a number of questions, and went back to the whiskey example, here, and thought what I considered to be a very good point, asking about whiskey. And he said, well to extend the example, would you say that the whiskey came from a barrel in Scotland, or wherever the whiskey was initially formed or distilled? That reminded me of a thought that I had about Mr. Henkin's grocery example, and you'll remember that he said, if you're interpreting the word "from," if you go and buy groceries and bring them to your home, you would say that the groceries come from the store and not from your car. And I think you could ask the same question that Justice Alito did. Well, you may say they came from the store, but you wouldn't normally say they came from the manufacturing plant, or from the farmer's field, or from another source. Just making the point that, really, it's not as clear as I think Mr. Henkin would like to have it.
In just a minute, I can count noses and maybe explain a prediction about where I think the Court may be going. But first, this may be a good time to open up to any questions from the audience. And maybe, while we're waiting for any questions, I talk briefly about Mr. Lin's rebuttal piece.
He took questions, primarily there, from Justice Sotomayor, who vigorously asked about, or expressed concern about whether, again, this is just a way to try to evade the requirements of the permitting program. Whether this allows permitters to get away with something. She used that phrase several times: what's being gotten away with, or what they're getting away with. Mr. Lin, again, focused on the fact that, even though there are some effluents that are getting to the ocean, here, the wells were constructed with encouragement and funding from the EPA, again, that there are other state and federal regulations that are significant and that provide appropriate limitations, here.
And again, in returning to the example of septic tanks, which is probably one of the more powerful arguments on the petitioner's side, he pointed to the fact that under the traceability rule, the traceability standard, that the environmental plaintiffs are advocating for, you could do a tracer dye study, similar to what was used here to establish pollutants from individual septic tanks. And, in fact, he pointed to a specific study that he cited in the reply brief where that had been done. So he expressed concern about whether there's any limiting principle under the environmental plaintiff’s approach.
So Wes, if there're no questions in the queue, I'll go ahead and talk about where I think the Court may be going.
Wesley Hodges: Go ahead.
Glenn Roper: Yeah, so I think the oral argument really indicated a division, here. Justice Thomas didn't ask any questions, but all of the other eight justices did. I think, on the petitioner's side, Justice Alito seemed to be strongly in their favor. I think Justices Kavanaugh and Gorsuch, it's a little harder to tell, but some of their questions seemed to go that way, in favor of the petitioner, the County. And then the Chief Justice I would put in that camp, as well.
Now, on the other side, I think Justice Kagan and Sotomayor were probably the strongest advocates going the other direction. Justice Ginsberg, it was a little harder to tell where she is thinking. She didn't ask as many questions here as in some other cases. Just looking at what she did ask, I think there's a good chance that she would probably be on the other side, as well.
Justice Breyer is one who, I could see, writing separately, in this case. He seemed to be very taken with his proposed functional equivalent standard, where he would ask for a functional -- or set the standard as whether it is a functional equivalent of a discharge. And then just let the EPA, the federal agencies, set rules that decide the details.
So if you're counting noses, I think there could well be five justices, assuming that Justice Thomas would vote with some of the other, more conservative justices that would be in favor of reversing the Ninth Circuit. Three who would be kind of clearly in favor adopting the Ninth Circuit, or a similar kind of standard, and then maybe Justice Breyer writing separately. But, of course, it's always perilous to try to read the tea leaves of the Supreme Court. And certainly, sometimes they ask questions that aren't necessarily indicative of where they are thinking of going.
If I had to make a prediction, I would say that there's probably majority here in favor of reversing the Ninth Circuit. But as Gregg Easterbrook likes to say, all predictions wrong or your money back.
Wesley Hodges: Fantastic. Well thank you, Glenn, for that analysis. Looks like we do have one question from the audience. Caller, you are up.
Caller 1: Thank you. I had a question about how other justices seemed to take to Justice Breyer's functional equivalent questions? The Supreme Court, quite a while ago, did employ some functional equivalent analysis in other Clean Water Act cases, but has backed away from and cabined that in more recent decisions. So I was wondering if those questions from Justice Breyer seemed to connect to that broader pattern or if the justices were really just looking at that in the context of this case?
Glenn Roper: Yeah. Great question. Unfortunately, there's not a lot of indication of where that was coming from. I mentioned the Ninth Circuit talked about this functional equivalence in its opinion. Justice Breyer didn't specifically refer to that, and so he may have been getting that from another source, or maybe picked up on the Ninth Circuit discussion.
As far as the other justices, Chief Justice Roberts was the only one who really, directly, kind of responded to that test. And he asked a number of questions, really just indicating that there's not much substance to saying what a functional equivalence is. It's really kind of vague and wouldn't leave parties in a better position than there would be before.
And I assume that Justice Breyer's response might be, well, and that's what we have the agency for. And the federal agency there could take our broad standard, and could then define, through rulemaking and other sorts of guidance, could then define what the standard is going to be and how it's going to apply.
Now, I'm sure some of the justices would have concerns about giving that sort of discretion over to the federal agency, the lack of clarity that that would give regulative parties, but that was really the only sort of response to Justice Breyer's proposal.
Wesley Hodges: Thank you caller. Well, seeing no more questions from the audience, right now, Glenn, is there anything that you'd like to cover more before we wrap up today? Or if you have any closing thoughts for us?
Glenn Roper: Yeah. I think just to step back to the big picture here, there are a number of different tests, as I indicated at the outset, that have been proposed here. And I think the fascinating, and important question is going to be what the Court decides to do. You have the functional equivalence test that Justice Breyer seems partial to. You have the fairly traceable test that the Ninth Circuit suggested, and that the respondents sort of adopted with a proximate cause tag added to it. You've got the Fourth Circuit approach of a direct hydrological connection that got brought up, but kind of tossed around a little bit at oral argument, but nobody seemed to fix too strongly to that.
And then on the other side, you have the petitioner’s test, where you look at what it is. They call it a means of delivery test; what it is that actually delivers the pollutants to the navigable water. And then you have the government's test, the groundwater is different test, where if you have groundwater intervening in any way, that cuts off the causal chain where there is no liability.
So as I count it, there are at least five different tests that have been proposed here, possibly six, and I think the Court will just have to go back to the text, the structure, the context of the language, and really just focus down and decide what is the appropriate response, what is the appropriate interpretation of the Clean Water Act here.
It's an important question. It'll affect people across the country, particularly if it is interpreted so broadly as applied to septic systems, or other normal everyday things that you probably would not expect to require Clean Water Act permitting.
So we'll expect a decision sometime before next July, and it'll be fascinating to see where the Court comes down.
Wesley Hodges: Absolutely. Well, Glenn, thank you so much for your time. Again everyone, this is Glenn Roper of the Pacific Legal Foundation. On behalf of The Federalist Society, I'd to thank you for the benefit of your valuable time and expertise. We welcome all listener feedback by email at [email protected] Thank you all for joining us for the call. We are now adjourned.
Operator: Thank you for listening. We hope you enjoyed this Practice Group podcast. For materials related to this podcast, and other Federalist Society multimedia, please visit The Federalist Society's website at fedsoc.org/multimedia.