The oral argument for County of Maui, Hawaii v. Hawaii Wildlife Fund will be heard before the Supreme Court on November 6, 2019. The issue at hand is: "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." This teleforum will preview the major issues of the case before the oral argument in November.
Brianne Gorod, Chief Counsel, Constitutional Accountability Center
Glenn E. Roper, Attorney, Pacific Legal Foundation
Moderator: Prof. Donald Kochan, Parker S. Kennedy Professor in Law, Chapman University
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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 Thursday, October 31, 2019, during a live teleforum conference call held exclusively for Federalist Society members.
Micah Wallen: Welcome to The Federalist Society’s teleforum conference call. This afternoon’s topic is entitled “A Courthouse Steps Preview Teleforum on County of Maui, Hawaii v. Hawaii Wildlife Fund.” My name is Micah Wallen, and I’m the Assistant Director of Practice Groups at The Federalist Society.
As always, please note that all expressions of opinion are those of the experts on today’s call.
Today, we are fortunate to have with us our moderator, Professor Donald Kochan, who is a Parker S. Kennedy Professor in Law at Chapman University School of Law. After our speakers give their opening remarks, we will then open it up for audience Q&A. Thank you all for sharing with us today. Professor, the floor is yours.
Prof. Donald Kochan: Thank you to all of the audience for joining us today. This teleforum is being sponsored by the Environmental Law & Property Rights Practice Group and the Regulatory Transparency Project. And as Mike pointed out, the topic today is the oral arguments for the County of Maui, Hawaii v. Hawaii Wildlife Fund, which will be heard before the Supreme Court on November 6, 2019. The issue in the case is whether the Clean Water Act requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a non-point source, such as groundwater.
This teleforum will preview the major issues of the case before the oral argument in November and try to highlight some of the key factors that will go into the Court’s decision making process. Water pollution cases are always the best cases. They oftentimes give us an opportunity to decide things besides just water pollution issues, from anything about what’s the meaning of the Commerce Clause to how do we interpret plurality opinions to, in this case, a side drama about who can in fact settle a case. So despite the fact that there’s been settlement buzz about the case, one of the primary concerns in that field is whether or not the mayor, the county council, or both need to agree to settle the case. Citizens have tried to force the mayor to sue in a recent filing. So there’s a lot of side drama going on outside of this case, as well.
Today’s teleforum, however, is going to focus on the core issues of statutory interpretation about point sources, non-point sources, groundwater and other issues in the Clean Water Act. And we are very fortunate to have experts on those issues with us today, and I’m going to give you a couple brief bios. And then we’ll hear from them on the case.
Glenn Roper is an attorney with the Pacific Legal Foundation. He joined PLF this year. Based in Colorado, he litigates across the country on behalf of individuals and organizations to advance the principles of individual freedom, separation of powers, and the rule of law. Immediately prior to joining PLF, Glenn served as Deputy Solicitor General in Colorado’s Office of the Attorney General. He previously was a partner at a Denver law firm and served as Deputy Associate Counsel in the White House Counsel’s Office for President George W. Bush and as a law clerk to Judge David M. Ebel of the Tenth Circuit Court of Appeals. Glenn graduated first in his class from Brigham Young University Law School.
After we hear from Glenn, we’re going to hear from Brianne Gorod. She is with the Constitutional Accountability Center, and she’s the Chief Counsel there. Before taking her role with the Constitutional Accountability Center, Brianne served as CAC’s Appellate Counsel. Brianne joined CAC from private practice at O’Melveny & Myers and worked as an Attorney-Adviser in the Office of Legal Counsel at the U.S. Department of Justice. She also served as a law clerk for Justice Stephen Breyer of the U.S. Supreme Court, a law clerk for Judge Robert Katzmann of the U.S. Court of Appeals for the Second Circuit, and a law clerk for Judge Jed Rakoff of the U.S. District Court for the Southern District of New York. Brianne received her J.D. from Yale Law School and her M.A./B.S. from Emory University. Her master’s thesis in political science examined judicial behavior on the United States Supreme Court.
The teleforum today will take basically three parts. We’re going to ask each of our speakers to talk about the issues in the case and the basis of the parties’ arguments in the case. The second portion of the call will focus on what we might look for in the oral argument, and then we’ll wrap up with some predictions on the case. So with that, I turn it over to Glenn Roper to start us off.
Glenn E. Roper: Thank you, Professor Kochan, and thank you to The Federalist Society for sponsoring this teleforum and to Brianne for her participation. I think this is one of the most significant environmental cases of the last few years, at least if the nearly 30 amicus briefs filed in support of the parties is any indication. The facts are largely undisputed. Maui County’s Wastewater Treatment Plant disposes daily of about 4 million gallons of treated wastewater into 200 foot deep injection wells. The treated wastewater mixes with ground water, which, over a period of between several months and several years, seeps through the aquifer until most of the wastewater has entered the Pacific Ocean about half a mile away.
In this case, a coalition of environmental groups sued the county, under the Clean Water Act’s citizen suit provision, claiming that the county’s wastewater disposal requires a federal permit and that the county should be held liable for operating without one. As I’m sure most of our callers know, the Clean Water Act doesn’t protect all water but only, quote, “navigable waters.” That includes things like the Pacific Ocean but does not include many other waters, including groundwater.
The key question in this case is what happens when a pollutant is not put directly into a navigable water but into groundwater that eventually seeps into a navigable water. Is the federal Clean Water Act permit required in that circumstance? Well, the Ninth Circuit concluded that, yes, Maui County should have obtained a federal permit for its wastewater disposal. The test applied by that court is that a permit is always required when a pollutant enters a navigable water and is both fairly traceable back to a point source and more the de minimis.
Now, importantly, the Ninth Circuit reached its decision even though the Clean Water Act does not talk about traceability or de minimis exceptions. Instead, the key phrase that the Supreme Court will have to interpret in this case is the Clean Water Act’s prohibition on, quote, “any addition of any pollutant to navigable waters from any point source.” That is broad language, and there are some things on which the parties agree. They agree that the treated wastewater is a pollutant, which is a very broadly defined term under the Clean Water Act. They agree that the Pacific Ocean is a navigable water. They agree that the county’s wells are point sources.
And for those maybe not as familiar with the terminology, the Clean Water Act distinguishes between point sources and non-point sources and applies a different regulatory scheme to each. It defines a point source as any discernible, confined, and discrete conveyance from which pollutants are or may be discharged. And it specifically lists some examples of point sources including wells. Finally, although the plaintiffs have equivocated a little bit on this point, I think the parties agree that groundwater is not itself a point source. Where the parties disagree is as to the meaning of the word “from” in the statute.
Specifically, is the disposal of wastewater into groundwater that travels underground to the ocean the addition of a pollutant to navigable water “from” a point source? Well, Maui County argues that it is not. Its position is that the Clean Water Act adopts a means of delivery test, meaning you look at the thing that actually delivers a pollutant into the navigable water. If that is a point source, then a permit is required. Otherwise, it’s not. The county supports its textual argument by focusing on the definition of point source, which I quoted just a couple of moments ago, and which requires that something be a conveyance in order to be a point source.
In other words, a point source is a point source not because it is the origin of a pollutant, although it may be, but because it is the means of delivering a pollutant to a navigable water. That’s the county’s position. And the county argues that because its wells aren’t the means of delivering pollutants to a navigable water, either alone or as part of a serious of point sources, no federal permit is required. The county argues that the structure of the Clean Water Act supports its approach, including because, given the possibility of severe punitive civil and criminal penalties, landowners and other regulated parties should be able to clearly predict whether a permit will be required.
The Ninth Circuit’s after-the-facts traceability test does not provide that predictability. The Ninth Circuit’s test would also dramatically expand the scope of the Clean Water Act’s permitting program and change the status quo by requiring expensive and time consuming permits, not only for wastewater wells, but also for groundwater recharge systems, farming and ranching activities, and even home septic systems. The county asserts that its argument is also supported by the legislative history. When the Clean Water Act was being considered, both the EPA administrator at the time and a member of the House of Representatives proposed that permits be required for the addition of pollutants to groundwater because groundwater gets into navigable waters. Congress rejected both proposals, indicating that it did not intend the addition of pollutants to groundwater to be regulated under the permitting program.
Finally, the county emphasizes that just because a Clean Water Act permit is not required does not mean that its wastewater disposal is unregulated. Instead, it is subject to regulation under the Clean Water Act’s non-point source program under which federal permits are not required, but states are given the primary authority to regulate. And Hawaii has indeed regulated in this instance. The county also points out that various federal statutes may govern discharges to groundwater, including the Safe Drinking Water Act, the Resource Conservation Recovery Act, also known as RCRA, and then circa superfund law.
Let me also comment quickly on the position of the United States. After the Ninth Circuit issued its decision, the EPA requested and received more than 50,000 comments on the question of whether discharges into groundwater that reaches navigable water require permits. Shortly after cert was granted in this case, the EPA issued formal interpretive guidance rejecting the Ninth Circuit approach. It reviewed the text, the history, past court decisions, and prior EPA positions, which have been inconsistent over the years, and ultimately concluded that the best reading of the statute is that all releases to groundwater are excluded from the scope of the permitting program, even where pollutants are conveyed to navigable waters via groundwater.
The EPA concluded that when there is groundwater between a point source and a navigable water that breaks the causal chain, eliminating the need for a permit. So that categorical approach is a little bit different from Maui County’s position but would lead to the same result in this case of reversing the Ninth Circuit. The Solicitor General filed a brief on behalf of the United States adopting the position found in the EPA’s interpretative guidance and also filed a motion to participate at oral argument, which the Court has granted.
I think it’s notable that the United States is not requesting any sort of agency deference to the EPA’s interpretation. And it’s hard to know exactly how much weight the Court will give that guidance. The plaintiffs in many of their amici criticized the interpretive guidance because it represents a change of position from the brief that the United States filed in the Ninth Circuit under the prior administration. But I personally find the interpretive guidance to be well-researched, thorough and reasonable, and I wouldn’t be surprised if members of the Court found it persuasive. So with that, Professor, I’ll turn it back to you.
Prof. Donald Kochan: Great. Thank you very much. Brianne, can you give us a little bit more perspective on the case, including the respondent’s position?
Brianne Gorod: Sure. Well, first I want to start by thanking you and The Federalist Society for putting on this teleforum and for inviting me to participate and to Glenn for participating as well and providing that, I think, very thorough accounting of the background to the case and the arguments that the County of Maui is making. I just want to note at the top that this case probably won’t get as much attention this term as some of the more high profile cases the Court is considering. But I do think it’s an incredibly important case about the proper interpretation of this incredibly important law, the Clean Water Act, a law that was passed to restore and maintain the chemical, physical, and biological integrity of the nation’s waters.
Now, as Glenn has explained, the law prohibits the discharge of any pollutant by any person, except in compliance with various provisions of the act, including the provision establishing the National Pollutant Discharge Elimination System. And what that system does is require dischargers to obtain permits that place limits on the type and quantity of pollutants that can be released into the nation’s waters. The Clean Water Act defines discharge of a pollutant as, quote, “any addition of any pollutant to navigable waters from any point source.” And as Glenn indicated, the question before the Court is whether this provision requires a permit for the discharge of a pollutant from a point source to navigable waters if the pollutant travels through an intermediary like groundwater on the way from one to the other.
Now, as Glenn also indicated, there are a few things in this case that everyone agrees on, and I want to just take a moment to remind the callers of what those things are. No one disputes that treated sewage from the county’s injection wells enters the Pacific Ocean, and no one disputes that this treated sewage is a pollutant, that the Pacific Ocean constitutes navigable waters, and that the injection wells are point sources, all within the meaning of the Clean Water Act. So again, the only question is whether the fact that the pollutant ultimately reaches those navigable waters via groundwater instead of deriving direction from the point source should relieve the county of its obligation under the Clean Water Act to obtain a permit. The answer to that question is no, and I think the plain text of the statute makes that clear.
As the Supreme Court has stated time and again, courts must presume that a legislature says in a statute what it means and means in a statute what it says there. The Clean Water Act’s text prohibits the discharge of pollutants to navigable waters from a point source. And it provides no exception for indirect point source pollution. Carving out such an exemption would contravene the Court’s long-standing presumption that Congress means what it says and would erroneously read an absent word into the statute, namely the word “directly.”
Significantly, a plurality of the Supreme Court in an opinion called Rapanos, written by Justice Scalia, has already recognized that the Clean Water Act, quote, “does not forbid the addition of any pollutant directly to navigable waters from any point source but rather the addition of any pollutant to navigable waters.” Again, that language “directly” does not appear in the statute. Given that, a straightforward reading of the Clean Water Act’s text prohibiting any unauthorized addition of a pollutant from one entity to another compels the conclusion that the statute prohibits such an addition regardless of whether it is delivered directly from one to the other.
The statute’s repeated use of the word “any” I think reinforces this reading. It reinforces the expansive scope of the prohibition on point source pollution without a permit. Again, rather than outlawing only the discharge of pollutants directly to navigable waters, the act broadly prescribes the discharge of any pollutant by any person without a permit. And it defines such a discharge broadly to include any addition of any pollutant to navigable waters from any point source. The Supreme Court has recognized that, read naturally, the word “any” has an expansive meaning. Importantly, Congress didn’t add any language limiting the breadth of that word in the Clean Water Act. The act’s prohibition of point source pollution, therefore, is broad and is obviously, by repeated use of that word “any,” is meant to be inclusive.
Given that, an interpretation of the statute that excludes from the Clean Water Act’s coverage the indirect addition of a pollutant to navigable waters from a point source is plainly inconsistent with the statute’s language. Again, by using the word any five times in two short provisions, Congress could hardly have been clearer that the statute bans any and all point source pollution.
Another textual point that I think is important is the act’s use of the passive voice. Instead of affirmatively prohibiting a point source from actually adding the pollutants into the navigable waters, the Clean Water Act uses the passive voice, banning the discharge of any pollutant by any person without a permit, including any addition of any pollutant to navigable waters from any point source.
As the Supreme Court has recognized when a statute uses the passive voice, it’s whether something happened, not how or why it happened that matters. Here, there can be no doubt that there was an addition of a pollutant to navigable waters from a point source without a permit. And so under the plain text of the law, it simply does not matter that the pollutant didn’t go directly from the point source to the navigable waters.
Finally, it’s worth noting the statute contains express exceptions that don’t apply here because that, too, counsels against reading into the statute an exception that Congress did not expressly include. The Supreme Court has repeatedly cautioned against finding implied exceptions to statutes, particularly where Congress explicitly enumerates certain exceptions to a general prohibition.
Now, in an effort to overcome the straightforward reading of the statutory text, which takes Congress at its word that from means from and to means to, the county argues instead that from means “deliver by.” In particular, the county argues that the Clean Water Act’s definition of point source as any discernible, confined, and discreet conveyance connotes a means of transport and imposes a means of delivery test. So under this test, the county argues a point source is prohibit from polluting without a permit only if the point source itself delivers pollutants directly to navigable waters.
This argument fails for multiple reasons, but the most significant is that it’s inconsistent with the ordinary meaning of the statute’s terms. The word “from” is ordinary used to indicate a starting point, not a means of delivery. So for example, you might say that a person receives a letter from her pen pal, even if that letter’s delivered by a postal worker. And interestingly, the county concedes that point source permit is required not only for point source to navigable water pollution but also for point source to point source to navigable water pollution and so on. I think that, too, is in tension with the county’s assertion that a point source must itself deliver pollutants directly to be covered by the Clean Water Act’s prohibition. If that’s right, there’s no reason under the statute why a permit should be required for the first point source in a chain that includes groundwater.
Given all that, I think the plain text of the statute answers the question in this case, but it’s worth also noting that Congress’ plan in enacted the Clean Water Act, as stated in the statutory text, only confirms that the text of the statute covers indirect point source pollution. The Clean Water Act states that its objective is to restore and maintain, as I noted earlier, the chemical, physical, and biological integrity of the nation’s waters. The Supreme Court has recognized that Congress’ intent in enacting the law was clearly to establish an all-encompassing program of water pollution regulation. Congress’ ambitious and far-reaching goal is all the more reason to give full effect to the act’s prohibition of point source pollution without a permit.
Far from producing an absurd result, a straightforward reading of the statute to cover indirect point source pollution directly serves the statute’s stated purpose: the elimination of water pollution and restoration of the integrity of our nation’s waters. And the possibility that enforcement of the act as written might require more entities to obtain permits than would an alternative policy simply does not justify modifying or disregarding the statute’s clear text. On top of that, it’s worth remembering that prior to its recent change in position the EPA has long said that these sorts of discharges fall within the Clean Water Act. And despite that, there’s been no evidence of problematic consequences as a result. In other words, this interpretation has stood the test of time, which only provides further support to the idea that the textual analysis that the respondents in this case have been offering is the correct one. So I’ll leave it there, and I look forward to further discussing this interesting and really important case.
Prof. Donald Kochan: Thank you both for those excellent summaries. I think we’re all better educated on the case now. And why don’t we take just a few minutes. I’ll offer it to Glenn first. Glenn, do you have any comments or responses to Brianne’s summary?
Glenn E. Roper: Sure. And thank you, Brianne. I think that was an excellent description of the position that the respondents are taking in this case. Just a couple quick points. I think that Maui County is not at all seeking an exception here. And Brianne referred to the lack of an exception in the plain text. But I think Maui County’s position is actually consistent with the plain text of the statute. And focusing again on the word “from,” I think the word “from” is ambiguous in this context.
And maybe as an example, if someone were to ask, “Where did you come from?” well, they might mean “Where did you grow up? Where is the city that you were born or grew up?” Or they might mean “What room did you just come from?” Or they might mean “How did you get here?” And in that sense, Maui County’s position with respect to the word “from” is just as consistent with the plain text. They also cite to the definition of point source as contained in the statute, which I think further supports their position by defining a point source as a conveyance, meaning that what Congress was interested in and concerned about was what is actually conveying the pollutant to the navigable waters.
I also wanted to comment quickly on Justice Scalia’s opinion in the Rapanos case. That’s a Pacific Legal Foundation case, so one that I’ve got a particular interest in. Justice Scalia’s comment about the statute not prohibiting discharge directly to a navigable water but to a navigable water. This is a plurality decision a dicta on an issue that the plurality specifically said it was not deciding. But more importantly, if you look at the cases that the plurality was citing, they were all instances where you had a string of point sources together. And I think that simply confirms the county’s position that the Clean Water Act requires a permit when you have multiple point sources that string together to a navigable water because all of those point sources are conveyances that are delivering the pollutant to the water. So to the extent that the Rapanos plurality has some force in this case, it is perfectly consistent with the county’s position.
And then finally, certainly Congress in its purpose language did talk about the purpose of cleaning the nation’s waters. But that wasn’t its only purpose. It also talked about the importance of relying on states and giving individual states the primary responsibility for environmental protection in their areas. The non-point source pollution program under the Clean Water Act does give states that primary responsibility, so there’s nothing inconsistent with giving states primary responsibility for protection of waters in discharges such as the one here. So those are just a few reactions to Brianne’s excellent comments.
Prof. Donald Kochan: Brianne, the floor is yours.
Brianne Gorod: Great. Well, thanks so much for that, Glenn. I think those comments definitely do capture the arguments that the county is making in the case. I guess a few further thoughts, first on the textual argument and going back to first the word “from.” I think, as your remarks indicated, there is certainly nothing about the word “from” and its usage in the statute that compels the results that the county is arguing for here. As you said, you view the use of the word in this context as ambiguous. And I think the important point is that “from” is most naturally read to refer to as a starting point. Earlier, I used the example of the pen pal and the postal delivery person.
I’ll give another example. If someone came home with groceries and was asked where those groceries came from, the person would probably respond the supermarket, not the car or the hands that delivered them into the home. And I think it’s also important, again, to look at not just the word “from” but all of the language in the statute and how that language is phrased, so again, any addition of any pollutant to navigable waters from any point source. The repeated use of the word “any,” again, makes clear the expansive language that Congress intentionally chose in setting out which discharges would require a permit.
I also want to touch briefly on the word conveyance. That certainly is part of the definition of a point source, which is defined as any discernible, confined, and discrete conveyance, including, but not limited to -- and then there are a whole bunch of different possible point sources identified. And one thing that I think is important to note about that language is the word conveyance there is used as a noun. It’s used to define what a point source is, but it’s not used as a verb. The statute doesn’t say that a permit is required when a point source conveys to navigable waters pollutants. And again, as the Supreme Court has said repeatedly, we need to take the Congress at its word when it is passing statutes.
And here, I think the plain text of the statute indicates that Congress very broadly intended permits to be required whenever there’s a discharge of a pollutant from a point source to navigable waters, regardless of whether that pollutant travels through an intermediary on the way from one to another. On Rapanos very briefly, it’s certainly right that that doesn’t decide the case. This is why I think we should be looking and engaging in the very close examination of text that we’re talking about this afternoon. And that’s why I think the Court will, as well. But it certainly is suggestive of how the Court, or at least several members of the Court, viewed the meaning of the statute in the past.
And again, the point that Glenn made about point source, the point source chain is just not clear to me why, if you think a permit is required if one point source delivers to another point source that delivers to navigable waters, why the results should be any different if one intermediary along that chain is not a point source. And then the final thing I’ll note is that, as Glenn notes, the statute certainly does envision an important role for the states in the regulation of non-point source pollution, but of course nothing about the respondent’s position is inconsistent with that. The question the Court is considering here is just what the scope of point source pollution is.
And as we’ve been discussing, I think the text of the statute clearly indicates that Congress, when it was passing the CWA, put in place a provision of law that requires a permit even when there is an intermediary along the way, along the path between the point source and navigable waters.
Prof. Donald Kochan: I think what we can see from this discussion is that it’s going to require a very careful and close analysis of the words and a very technical look at what the goals and purposes, as well as the text, of the Clean Water Act is trying to do. That’s going to require us to also, I think, look very closely at what kind of questions are going to be asked at the oral argument.
So I’d like to turn for just a few minutes to ask each of you, starting with Glenn, what are you looking for in the oral argument? What should our listeners be looking for? What might you predict would come up as some of the questions, maybe some of the personalities and methodological approaches of particular justices that may come into play in the questioning? I think what I’d add to that is feel free to also propose the question that you think a justice should be asking and give them some guidance.
Glenn E. Roper: Great. Thank you. I think this is a case that will have a very hot bench. I expect that there’ll be lots of questions. Given the county’s bright line that they’re trying to draw here, I would expect their lawyer to get hit with a number of tough hypotheticals about the limits of their position. For example, what if instead of half a mile away, what if the ocean is 30 feet away or 10 feet away? Does that change their position about a discharge into groundwater that makes its way to the ocean? And then what if the groundwater flows through an underground river instead of seeping through the aquifer? Would that change anything about their position?
I would also expect the county to be asked about whether its position makes it too easy for would-be polluters to undermine Clean Water Act requirements by redirecting pollution from a navigable water into groundwater that then still ends up in the navigable water? The respondent in a number of the amici talk about making it too easy to bypass Clean Water Act requirements, and I expect the county would be asked about that.
The attorney for the Solicitor General’s Office who will be taking ten minutes of argument time I expect may get some questions about the EPA’s change of position here, given that in the Ninth Circuit it was advocating one test and then changed with the interpretive guidance and now that the position that the United States is taking in this case, and also whether it is drawing the right bright line with respect to discharges into groundwater.
As for the plaintiff’s attorney, I expect there will be some tough questions about whether their position is a radical expansion of the Clean Water Act, requiring federal permitting in a wide variety of circumstances and the effect that that will have on ordinary homeowners and businesses and local governments. I think Court observers will be interested in any questions asked by the two newest justices, including I’m particularly interested in Justice Kavanagh and whether he will express any concerns similar to his former boss, Justice Kennedy, about the crushing consequences that vigorous Clean Water Act enforcement can have on ordinary landowners.
And then, finally, I’d be interested to see what Justice Kagan will have to say given her experience serving as the Solicitor General. In particular, I wonder what she will think of the EPA’s interpretive guidance, whether she will consider that legitimate and what sort of deference, if any, that she thinks it would be owed. So those are my initial thoughts on what to look for at the oral argument.
Prof. Donald Kochan: Brianne, what should we be looking for?
Brianne Gorod: Yeah. Well, I think Glenn definitely hit a lot of things that are likely to happen at the argument in November, which I think should be a really interesting one, both because of the fine legal analysis that this case requires and because of the important consequences that could result from it. One thing that I’ll definitely be looking out for is to hear how the justices parse the language of the statute and how many questions we get that really focus on the word “from,” the word “any,” the word “conveyance.”
I may sound like a broken record at this point, but I do really think the text of the statute is key here. So I would certainly expect to hear a number of questions along those lines, certainly from a justice like Justice Gorsuch, who professes to follow the text of the statute where it leads. But as Justice Kagan has said, “We’re all textualists now.” So I really think we’re going to hear questions that focus in on the language of the statute from a number of justices on the bench trying to understand, again, what these individual words mean, what they mean when you put them all together, and then also how different provisions of the statute intersect and work together.
I think it’ll also be interesting to see to what extent the justices press the EPA on its argument, given that it really doesn’t even really claim to be so much about the text but instead focuses on the agency’s reading of the law’s structure and its history. Speaking of the EPA, I totally agree with Glenn that we could see some of the justices pressing the EPA on its change in position. That’s something that has come up at arguments before, changes in various agencies’ positions from one administration to the next. So I think that’s definitely something that could well come up at this argument.
I think it’ll also be interesting to hear how much is made of the fact the county and the EPA are taking different positions here. Obviously, they wind up in basically the same place in terms of what the bottom line outcome in the case would be. But the fact that they have different rationales, different ways of getting there I think is an interesting wrinkle in the case. And it’ll be interesting to hear how the advocates address that fact and, again, how much attention the justices focus on it during the course of the argument.
And then, I think we’ll certainly hear questions from the justices about what these different standards mean, what they would look like in practice, what the consequences of different outcomes could be, both because the justices are going to want to understand that as they’re trying to decide how to rule and also because that might inform their assessment of what Congress was trying to accomplish when it passed this language into law.
So I think it is going to be, as Glenn said, probably a very hot, active bench. There’s a lot to ask about here, and I suspect we’ll hear a whole bunch of different questions from the different justices on the range of questions the case presents.
Prof. Donald Kochan: Excellent. Thank you. I’d like to end, before we move to questions, with each of you taking just a couple moments giving us your predictions. This is a much different Court in many ways than, say, the Rapanos Court, which both of you have discussed some of that precedential weight there. But we have some new justices and some intervening cases since our last Clean Water Act interpretations, as well as our last textual or statutory interpretation cases that are going to play a role here. So what do you predict as to the ultimate outcome and any predictions on who’s going to go in what direction?
Glenn E. Roper: I’ll go ahead and start, and I’ll make two very modest predictions. First, I predict this will not be a unanimous decision, and I think it’s likely to break down along ideological lines. In some past cases, Justices Thomas and Alito, in particular, have been critical of aggressive enforcement of Clean Water Act requirements -- permitting requirements. I think they’d be concerned about its application here as well. On the other hand, Justices Ginsberg and Breyer have joined opinions favoring a more aggressive enforcement of Clean Water Act. I suspect that they will do here as well. And I think there’s also good reason to think that Justice Sotomayor would join them. I’m less certain about the remaining four justices. So that’s my first very modest prediction is that it will not be unanimous.
Second modest prediction, I predict that the case will not settle. Professor Kochan referred to sort of the internal conflict between the Maui County counsel and the mayor that’s going on. Although it’s possible, I don’t think there’ll be a change in position or a court ruling that will get in the way there.
And then since my first prediction may be a little unsatisfying, I’ll go ahead and be a little more bold. I think there likely is a majority that will want to reverse what I think is a very aggressive interpretation by the Ninth Circuit here. So though it’s always hazardous to try and read Supreme Court tea leaves, I’ll go ahead and predict a judgement of reversal. And I think it’s also worth noting, Brianne mentioned a distinction between Maui County and the EPA’s position. I think it’s also worth noting that there’ve been a number of different positions on the other side. The Ninth Circuit applies this traceability test. The Fourth Circuit applied a different test where it looks at whether there’s a hydrological connection between the groundwater or between the discharge of pollutant and the navigable water.
And I think the respondents in this case have asserted at least a third sort of approach, which is you look at just approximate cause kind of cutoff here. So I’m not sure exactly where the Court will come down, but I’ll go ahead and be bold and say that we’ll see a reversal of the Ninth Circuit decision.
Brianne Gorod: Well, I’ll agree with Glenn that it’s definitely a little hazardous to make predictions about what the Court is going to do but disagree with him on the prediction of where the Court is going to come out. That probably won’t surprise any of the callers who’ve been listening to our remarks thus far this afternoon. As my comments thus far indicate, I do really think this case is one that’s going to center on the text of the statute. And given, I think, the very strong textual arguments in support of the respondent’s position, I think this is a case in which there actually should be a majority in support of that view.
And I’ll even go a little bit father and say that there should be some cross-ideological support for that view. Glenn obviously focused on kind of where the justices have been in terms of their views on aggressive regulatory enforcement. I think those are fair characterizations, but I think the question here really shouldn’t turn on those views but on what Congress was seeking to accomplish when it passed this law and what the text of the law requires in terms of what type of permitting is required.
And given that I think the text here is so important, it actually reminds me a little bit of a case from last term that had nothing to do with the Clean Water Act or even the environment but did show how the justices can sometimes come together when the strength of the textual arguments compel it. This was a case called New Prime v. Oliveira in which the Supreme Court was considering whether companies can use the Federal Arbitration Act to block truck drivers and other transportation workers who work for them from seeking redress in court for the company’s legal behavior by classifying those workers as independent contractors.
Now, this is a Court that is not normally friendly to workers who are trying to go into court rather than an arbitration tribunal. But in a unanimous decision written by Justice Gorsuch, the Court held that the workers could have their day in court in an opinion that really focused on the text of the statute and the meaning of the words in it. So here, too, I think the textual argument is so strong that we could see and certainly should see justices on both sides of the ideological divide coming together to take the position that a permit is required here.
Prof. Donald Kochan: Thank you both very much. I think we should turn it open to the audience questions.
Micah Wallen: We will now go to our first question.
Caller 1: May I ask when Elbert Lin came in on this case for the county in Hawaii and may I ask who he will go up against in the oral argument?
Glenn E. Roper: As to when Elbert Lin began representing the county, I do not know the answer to that. Brianne may know, but I don’t know if he was involved in the Ninth Circuit or just here. My understanding is that he will be arguing on behalf of the county. David Henkin from Earthjustice I expect will argue on behalf of the plaintiffs. And then there will be someone from the SG’s office, possibly the Solicitor General, although I don’t know who from that office will be doing the argument. Brianne, I don’t know if you have a better answer.
Brianne Gorod: No, I don’t know when Elbert Lin came in. And your supposition as to who’s doing the argument for the parties is the same as mine. And I don’t know who’s going to be arguing for the SG’s Office. It doesn’t look like the Supreme Court calendar for the November sitting is up yet. So I don’t know that we know for sure, but I’m sure we’ll find out shortly.
Prof. Donald Kochan: Let me give you a question, Glenn. If the textual analysis were to take us to the meaning of “from” that Brianne has suggested and that the respondents are suggesting, might it not be better to take that more strict textual analysis and just kick it back to Congress and say, “Look, if this is wrong, you need to write a clearer statute?” There obviously is a lot of different interpretations as to what this should mean, and maybe we need a harsh ruling from the Court that motivates Congress to -- I shouldn’t say harsh, but a very exacting ruling from the Court that requires Congress to act and provide some clarity.
Glenn E. Roper: Thank you. Great question and certainly the Court will be thinking, I’m sure, about what reaction, if any, Congress may have to this decision. I think, though, instead of trying to make a ruling based on the fact that Congress could correct it, I think the Court will be more focused on trying to discern what Congress’ intent was in enacting this language. And in understanding what the term “from” means, I think you do have to look at the definition of point source. And that’s where you get the requirement that it be a conveyance, which is an indication that what Congress meant is that the point source has to be the conveyance that gets it to the navigable water.
Now, I think the legislative history also may be relevant for those justices that are interested in looking at it, which not all of them are. But I think the case earlier this term that talked about sex discrimination in the transgender cases raised an interesting issue of what do you do if the language seems to point one way but it’s obvious that Congress did not have that in mind at the time? And that may be something that the Court grapples with here, as well.
But I think if you look at the legislative history and the amendments that were proposed that would have done the very kind of thing that the Ninth Circuit ruled for here, I think that shows that Congress did not have in mind discharges to groundwater here being included in the permitting system. And I would hope that the Court would consider that and come to that same conclusion.
Prof. Donald Kochan: And Brianne, a question for you. One of the things that the Court’s likely to be thinking about is limiting principle. And if you’re looking at whole statute review, you had mentioned, of course, there is a non-point source section in the Clean Water Act and coverage of that. And one of the questions might be is the line too blurred, if the Court accepts your interpretation of “from,” that “from” means the starting point, meaning that almost any non-point source might have gotten polluted in the first place as a result of a point source. And are you eliminating the distinction?
Let me just give you a quick hypo to respond to. If I run a restaurant and I have a lot of waste at the end of the night, kitchen grease and other things, if I take that and walk that down to the river and dump it out of a bucket directly into the river, I’m likely covered as a point source. And I need an NPDES permit for that. If I just go in the back alley and dump it on the ground, or let’s say I just dump all of it down the sink and it ends up in a navigable water that way, does that restauranteur need a NPDES permit for those activities? Would that be covered, or is there a limiting principal which would prevent that from being covered under this definition?
Brianne Gorod: Yeah. I think that’s a great question because I think you’re absolutely right that, with respect to the three different positions we have here—the petitioners, the respondents, and the EPA’s—what the Court is going to be thinking about is how practicable is that standard and what would it look in practice and operation, and how broad will the applicability of that standard be? And you know, what the respondents have said is that the textual requirement that pollutants come from a point source also implicates the legal concept of proximate cause, so the idea that not all factual causes contributing to an injury should be legal penalizable. And they say that has relevance here.
So when you’re thinking about whether something comes from a point source, you need to consider whether that point source was approximate cause of the addition of pollutants in navigable waters, whether it was, essentially, foreseeable. I expect that they’ll get questions about what that exactly means and hypotheticals like the one you proposed that they’ll have to grapple with. I do think, stepping back for a moment to kind of the premise of your question, that the justices are going to be concerned about the possibility of adopting an interpretation that is too expansive or that blurs the line between point source and non-point source. Again, there’s always going to be a point source. That is key, and no one disputes that it has to originate from a point source.
The second point is that, even if this results in more permits being required than would be required under alternative policies, if that’s what the language of the law Congress passed requires, than that, I think, should be the answer for the Court. Glenn referenced this question of where there’s tension between what the language says and what Congress may have had in mind when it was enacting that language. And I think what the Court has said in the past is it’s the provisions of our laws that govern us, not the intent of the individuals who enacted them. So that’s, again, why I think here we’re going to have a lot of focus on the language of the statute and what that language requires.
Micah Wallen: We did have another question come through, so we’ll move to that next caller.
Caller 2: Good day. I’m a state regulator in North Carolina. As I hear this, I’m hearing what sounds like an attempt to impose dual regulation on this particular facility, which I don’t understand, first of all, why that would be a good outcome. But secondly, you’ve had all this discussion of parsing wording of the statute and so on, but why doesn’t the structure of the statute, which includes the non-point source of regulatory program, which apparently is what regulates this facility anyway -- why doesn’t that answer the question? You’ve got non-point source regulation. Why would Congress have in mind to have imposed a separate NPDES permitting requirement on top of that?
Brianne Gorod: I think it’s entirely right that you need to look at the structure of the statute. And in fact, when you look at both the respondents and the petitioner’s brief in the case, there’s a lot of arguments about other provisions of the statute, certainly the non-point source regulation, but other provisions as well. I think there are -- certainly the respondents make a number of arguments about why their interpretation of the point source provision is entirely consistent with these other provisions.
To the question of why Congress would have wanted point source regulation here, I think, again, I’ll go back to the language of the statute and Congress’ how that’s at -- how that language is consistent with Congress’ purpose in passing the Clean Water Act, which was to ensure comprehensive protection of navigable waters. I think the language that Congress chose clearly indicates that it thought that there should be an expansive interpretation of the point source regulation program because they, again, used this very broad language: any discharge of any pollutant. So again, I think it’s that language that we need to go back to in understanding what’s required here.
Caller 2: Perhaps I didn’t fully explicate my question. I don’t doubt that Congress intended non-point source regulation. My point is why would Congress have intended duel regulation, both non-point and point source, in a situation like this? That’s why it seems to me the structure of the statute ought to settle the issue in favor of the facility.
Brianne Gorod: I think what the structure of the law indicates is that there were areas where Congress thought that point source regulation was appropriate, and there may be some contexts in which point source regulation is appropriate and other regulation is appropriate as well, just like they’re obviously multiple statutes that also affect regulation of water in different ways. And sometimes, those statutes are going to operate exclusively of each other, and sometimes there’s going to be some redundancy because Congress comes to the conclusion that that’s the best way to ensure that, in this context, our waters are as clean as we want them to be.
Glenn E. Roper: And I would just say I do think that the justices will be concerned about the role of states in this process, particularly given that the Clean Water Act announces a policy of Congress to, quote, “recognize, preserve, and protect the primary responsibilities and rights of states to prevent, reduce, and eliminate pollution.” And West Virginia and about 20 other states filed an amicus brief addressing that point and talking about the ways in which their states do regulate and control pollution in a non-point source program. So I do think that’ll be an issue that the court will be aware of and concerned about the role of the states versus the federal government in regulating water pollution.
Prof. Donald Kochan: Glenn, you had mentioned that you don’t think that this case will settle. But if it does, my understanding is that theses questions might not escape the Court, that there are other cases waiting in the wings to take its place. Can you just give us maybe a minute on that?
Glenn E. Roper: Sure. And if it were to settle, the Court appears to be holding a case out of the Fourth Circuit that I referred to briefly before. This is the Kinder Morgan case. Paul Clement is the counsel of record in that case. That has to do with similar questions but a different sort of fact pattern. There you had an underground gasoline line that broke and leaked thousands of gallons, maybe hundreds of thousands of gallons of gasoline that eventually began seeping up and popping up in navigable waters. The owner of the pipeline, as soon as they found out about it -- they worked with the state on a cleanup plan, and they’ve been working together on that.
But they were sued because the pipe is certainly a point source, and this leak did go through the groundwater and end up in a navigable water. And so there the Fourth Circuit concluded that -- it said because there’s a hydrological connection—that was the term that it used —between the pipe and the navigable water, it found that the pipe owner should be held liable under the Clean Water Act for this release without a permit. That case, it’s not been granted. It hasn’t been denied. The Court appears to be holding it, pending a determination in this case. So I think I would expect that, if this case did settle, that that is at least one vehicle that the Court could grant cert and address this question.
Prof. Donald Kochan: Any comments on Kinder Morgan, Brianne?
Brianne Gorod: No, I think that all sounds right. As Glenn said, I think if this case were to settle the Court will have future opportunities to address the really important case and address any questions that it presents.
Prof. Donald Kochan: Let me give an opportunity for each of our speakers to give us some closing remarks, a couple minutes each. And in them, you might suggest to our listeners, among the many because we know that there are a lot of amicus briefs in this case, which ones should they read? So as part of your closing remarks, tell us a little bit of your last thoughts on the case and then any guidance on our homework as we leave this call.
Glenn E. Roper: Yes. I think, again, this is an immensely important case, and I think it will have wide ramifications on a number of regulated parties, including landowners, ranchers, farmers, and others. As far as the text, Brianne has talked a lot about that text, and the text is very important. But I think it’s also important, and I think the Court will keep this in mind, that you can’t just myopically focus on one phrase in the statute. And I think the Court will instead be looking more broadly at how is the broad structure of the statute -- what do the other provisions say about discharges into navigable waters, and how is that addressed. And I think the respondent’s brief does a good job of canvassing a number of those elements of the Clean Water Act that are going to be important in any analysis here.
As for amicus briefs, I think, obviously, the United States’ amicus brief is going to be incredibly important, as always. I mentioned the brief of West Virginia. I think that’s one that’ll be important on the petitioner’s side. And then Pacific Legal Foundation, we filed a brief as well, not to pat ourselves on the back too much, but that’s one that I think is worth reading. And then there’s a -- I can’t remember the exact parties, but there’s an industry brief filed by Tim Bishop that I think provides some good perspective on behalf of agricultural parties and interests, talking about the effect that the Ninth Circuit’s interpretation, if adopted, would have on them. So those are a few on the petitioner’s side that I would highlight.
Prof. Donald Kochan: Brianne?
Brianne Gorod: Great. Well, as I’ve said, I think this is a really interesting case, a really important one, and I think it’s going to be a really fun one to watch because of the nature of the questions and the fact that we’re, I think, going to hear the justices, again, really focusing in on the language of the statute, the words that it uses, how the provisions of the statute work together. And I do think as the Court considers it, it should take Congress at its word.
As I said before, the Supreme Court has stated repeatedly that the job of courts is to presume that a legislature says in a statute what it means and means in a statute what it says. And I think Congress, in defining the discharge of a pollutant to mean any addition of any pollutant to navigable waters from any point source, made clear that permit is required when a pollutant is discharged from a point source to navigable waters, even if it doesn’t get there directly, even if it travels through an intermediary, like groundwater, on the way from one to the other.
In terms of amicus briefs to look at between now and the argument, I’ll do a little back patting as well. My organization, the Constitutional Accountability Center, filed an amicus brief that I would recommend to folks, particularly if you’re interested in these textual arguments because they are a focus of the brief that we field. There are a number of amicus briefs that were filed in support of the respondent in this case, a couple of others that I think are definitely worth taking a look at.
There are a couple of briefs that were filed on behalf of former EPA officials. So there’s, for example, a former administrators of the EPA in support of respondents brief. That really takes a look at how the EPA has interpreted this provision over time and talks about the change in position that we have now and why that change in position is so problematic. There’s also been, obviously, a lot of conversation this afternoon about states and how they could be affected by the Court’s decision one way or the other.
And so I think it’s worth noting, too, that there is an amicus brief filed on behalf of a number of states including Maryland and California and Connecticut and New Jersey and Massachusetts and others in support of respondents, so presenting the perspective of those states and explaining why they think that a permit should be required here.
Prof. Donald Kochan: Thank you. So we’ve been listening to a Courthouse Steps Preview teleforum on County of Maui, Hawaii v. Hawaii Wildlife Fund. As a reminder, the oral argument is next week, November 6 of this year. And it should be a very interesting one in which we will get some answers at some point this term about the meaning of the Clean Water Act and the interrelationship between point sources, non-point sources, and groundwater.
I’d like to thank Brianne Gorod and Glenn Roper for joining us today and The Federalist Society for hosing this call, particularly the Environmental Law & Property Rights practice group, as well as the Regulatory Transparency Project. Thank you again to all of you for listening and thanks again to our panelists for providing excellent commentary and predictions.
Micah Wallen: And on behalf of The Federalist Society I’d like to thank our experts for the benefit of their valuable time an expertise today. We welcome listener feedback by email at firstname.lastname@example.org. Thank you all for joining us. We are adjourned.
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