Supreme Court to Hear Case That Could Limit Water Pollution Claims

February 19, 2019

The U.S. Supreme Court on Tuesday agreed to consider limiting the scope of a landmark law aimed at curbing water pollution in a dispute pitting environmentalists against local authorities in Hawaii over a wastewater treatment plant.

The justices agreed to hear an appeal by Maui County of a lower court ruling last year siding with the Hawaii Wildlife Fund in its 2012 lawsuit accusing local officials of violating the 1972 Clean Water Act.

The San Francisco-based 9th U.S. Circuit Court of Appeals found that a Clean Water Act program requiring property owners responsible for polluted water discharged from pipes, drains or other “point sources” to obtain federal permits should apply to discharges from the county wastewater facility that end up in the Pacific Ocean.

The Hawaii Wildlife Fund and other environmental groups said in a 2012 lawsuit that the county violated the Clean Water Act because several million gallons of treated wastewater from the Lahaina Wastewater Reclamation Facility ends up in the Pacific Ocean every day.

President Donald Trump’s administration sided with the county and urged the court to hear the appeal, pointing out in a court filing that the U.S. Environmental Protection Agency, which oversees enforcement of the Clean Water Act, is currently weighing whether the types of discharges at issue are covered by the law.

The legal question is whether the county needs a permit even though the waste reaches the ocean via groundwater underneath the wells and is not discharged directly into the ocean through a pipe or other means.

“We are confident the Supreme Court will agree with the appeals court that, when Congress passed the Clean Water Act to protect our nation’s waters, it did not give polluters a loophole to use groundwater as a sewer to convey harmful pollutants into our oceans, lakes and rivers,” said David Henkin, a lawyer with Earthjustice, a public interest law firm that represents the environmental groups.

The court will hear oral arguments and issue a ruling in its next term, which starts in October and ends in June 2020.

A ruling in favor of the county would limit the ability of environmental groups to sue for Clean Water Act violations in certain cases. In the Hawaii case, the county has provisionally agreed to pay a $100,000 penalty and invest in new infrastructure. The county would also apply for a permit and face further penalties if it does not address the ongoing issues.

The court’s eventual ruling in the Hawaii case could affect a similar appeal pending with the justices brought by Houston-based pipeline company Kinder Morgan Inc. seeking to fend off a lawsuit by two environmental groups over a 2014 pipeline leak in South Carolina that spilled 370,000 gallons of gasoline and diesel, which seeped from groundwater into waterways.

(Reporting by Lawrence Hurley; Editing by Will Dunham)


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