The US Supreme Court takes on the Clean Water Act, whiskey flasks, and punch

Figuring out how the flow goes.
Figuring out how the flow goes.
Image: Ephrat Livni
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On Nov. 6 the US Supreme Court heard oral arguments in an environmental case pitting the County of Maui against the Hawaii Wildlife Fund. It’s a fight over pollution and the Clean Water Act (CWA) that could have far-reaching implications for the environment.

The Hawaii Wildlife Fund says pollutants from four wastewater injection wells, where waste from the community is gathered and treated before being released deep into the ground, owned by the Maui government, are reaching the Pacific Ocean, violating the CWA. Under the 1972 law, pollution from a “point source” requires a permit.

Maui hasn’t sought permits for these wells, however, because it says the fact that its pollutants mingle with groundwater before reaching the Pacific Ocean takes them out of the “point source” category, and “non point sources” don’t require permits under the law.

In other words, because the waste from the well meets the groundwater en route to the sea, the county isn’t responsible for the pollutants in the Pacific that originate from its wells, even though there is evidence of the origins.

“All right, but then what we have is, I take it, an absolute road map for people who want to avoid the point source regulation. All we do is we just cut off the pipes or whatever, five feet from the ocean or five feet from the navigable stream or five feet from—you see? You understand the problem,” justice Stephen Breyer countered when the county’s counsel laid out its position.

Whiskey and water

Hawaii environmentalists argue, and the justices certainly seemed to see their perspective, that if the law is to be read how the county urges, it would allow anyone to evade responsibility for waste and the need for a permit by simply deciding to route pollutants through a non-point source, like groundwater.

Malcom Stewart, the attorney for the US government, which supports the county in its position, offered the justices another perspective. He provided an analogy, saying:

[F]or example, if at my home I pour whiskey from a bottle into a flask and then I bring the flask to a party at a different location and I pour whiskey into the punch bowl there, nobody would say that I had added whiskey to the punch from the bottle. It would be true that…the whiskey originated in the bottle, its route was fairly traceable from the bottle to the punch bowl, and it wound up in the punch bowl, but you wouldn’t say it was added to the punch from the bottle.

Stewart felt the justices were too focused on the words “to” and “from” in the CWA. He offered another example. “Now, at the other extreme, if I brought the bottle to the party and I poured it, the whiskey from a few inches above the surface of the punch and so it traveled through air or if it traveled through a funnel so it passed over a solid surface, 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.”

He noted that both of his examples, which relied on the ordinary meaning of “to” and “from,” were extreme and neither would clear up confusion about the clean water law. Instead, he pleaded with the court to consider other provisions in the CWA and read them together for the true meaning of the point source permits requirement.

Going with the flow

But the Hawaii Wildlife Fund ran with the government’s examples. Its attorney, David Henkin, countered, “[Stewart] said you would never say the whiskey that’s in the punch came from the bottle, you’d say it came from the flask, well, here, Congress was trying to prohibit whiskey in punch.”

Henkin likened Maui’s wells to whiskey, saying, “[H]ere, we know we have whiskey, whiskey in the form of an injection well that is discharging 3 to 5 million gallons per day into the ocean. And there’s nothing about the Clean Water Act that would allow a polluter to evade it by pouring the whiskey via the groundwater.”

“Well, I didn’t know Mr. Stewart was spiking punch,” Justice Samuel Alito joked as the courtroom exploded in laughter. Still, he took the example even further, suggesting the whiskey didn’t come from the flask or bottle but from a barrel in Scotland. Then how should the justices think of a point source?

Henkin conceded that if spoilage occurred at the origins, it would change the context but said the conclusion would be the same if the spoilage could be traced. “What Congress wanted to do here was  regulate pollution at the source when we can. And the source here clearly is their injection well,” he said.

Still, Henkin faced resistance as the justices tried to consider the consequences of a finding for the wildlife fund and against the county. Finding Maui liable makes every septic tank owner in the country responsible for seeking a permit and risking severe fines if they don’t, the county says.

Henkin argued that the ruling would not impact individuals because in a community with 20 septic tanks, pollutants wouldn’t be traceable to a single point source.

Chief justice John Roberts, who until then seemed skeptical of Maui’s position, wasn’t buying it. “It’s an Agatha Christie novel. You have 20 people and they shoot the gun at the guy at the same time.” Roberts asked, “No one’s guilty?”

His remark was met with amusement and a gentle correction from justice Elena Kagan, who reminded her boss that this wasn’t the issue before them. What they have to decide is whether a point source that meets with a non-point source can be the “functional equivalent” of a direct polluter.

Based on the debate yesterday, the justices’ conferences about the case will probably be amusing and may require them to do a shot or two. But whether they will decide for the county of Maui or for the environmentalists, the matter has grave consequences, and it’s evident from their discussion that the justices are worried about allowing Maui to go with the flow and spike the metaphorical punch that is the Pacific Ocean.