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Supreme Court Recordings Reveal Justices Struggling To Find Answer in Maui Case

Fred Schilling
Supreme Court of the United States
Front row, left to right: Stephen Breyer, Clarence Thomas, John Roberts, Jr., Ruth Bader Ginsburg, Samuel A. Alito. Back row: Neil Gorsuch, Sonia Sotomayor, Elena Kagan, Brett Kavanaugh.

During an hour-long hearing on the Maui Clean Water Act case, the U.S. Supreme Court justices seemed to be seeking a legal path to keep polluters from skirting the law without ensnaring ordinary homeowners. 

The oral arguments centered on whether the indirect pollution of surface water via groundwater is covered by the federal Clean Water Act, which explicitly covers direct discharge into those waters.

The hearing featured such highlights as a debate over the meaning of the word "from" and a metaphor about transferring whiskey from a bottle to the punchbowl.

Lawyers for Maui County spoke first, arguing that indirect pollution from its Lahaina treatment plant is not covered by the Clean Water Act. Justice Stephen Breyer expressed skepticism over that claim.

“What happens if you just take the pipe and you decide what we'll do is going to end the pipe 35 feet from the river or from the ocean? You know perfectly well it'll drip down around it [and] will be carried out into the navigable water,” Breyer said to attorney Elbert Lind.

The Clinton-appointee called that a roadmap for subverting the law. Obama-appointee Justice Sonya Sotomayor seemed to suggest that Maui County’s interpretation of the Clean Water Act didn’t pass the common sense test.

“You read the plain language and does it say from a point source, that’s the well, to the ocean. It can be traced. Yes. I think the words are pretty clear,” Sotomayor said.

When questioning the attorneys challenging Maui County, the justices sought what they called a “limiting principle,” one that would exempt regular people from having to get a costly permit under the Clean Water Act. George W. Bush-appointee Justice Samuel Alito used the example of a family home purchased with a septic tank.

“And then it turns out some things are leaching out of the septic tank 10 years later and making its way into waters of the United States, that they would be violating the Clean Water Act for lack of a permit [and] will be subject to all the penalties that go with that for every day of the violation.”

Fines in a case like that could cost as much as $25,000 dollars per day.

Attorneys representing the environmental groups suing Maui County suggested only wastewater that could be traced back to a source need be subject to the law, but several justices expressed concern that was still too broad.

Breyer, who earlier had sparred with the county’s attorneys, expressed concern about broadening the scope of the Clean Water Act too far.

“I am worried about 500 million people or something suddenly discovering that they have to go apply for a permit for the EPA,” he said.

The septic issue is particularly significant to Hawaii. There are 90,000 cesspools statewide, the vast majority on the neighbor islands. State law already requires those cesspools be converted to closed septic systems by 2050.

Oral arguments appeared to conclude without the justices being any closer to finding the solution they sought, one which could reshape one of the nation’s most important environmental protection laws.

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