Justices Seem Uncertain About Reach Of Clean Water Act In Maui Case

Nov 6, 2019

Updated: Nov. 6, 10:06 a.m.

WASHINGTON — The Supreme Court seems uncertain about how to decide a closely watched case from Hawaii about the reach of landmark federal clean-water protections.

The justices heard arguments Wednesday about whether a sewage treatment plant needs a federal permit when it sends treated wastewater deep underground, instead of discharging the sewage directly into the Pacific Ocean.

Studies have found the wastewater soon reaches the ocean and has damaged a coral reef near a Maui beach.

Several justices appeared to be searching for a compromise between environmental groups on one side, and the Trump administration and the local Hawaii government on the other. Trump's Environmental Protection Agency recently reversed the agency's long-standing position.

Reuters reported that Justice Stephen Breyer, a liberal, said allowing Maui County to prevail could give polluters a way to evade the law.

“You have an absolute road map for people who want to avoid the ‘point source’ regulation,” Breyer said, calling for a legal test that would “prevent evasion.”

Conservative Justice Samuel Alito, according to Reuters, expressed concern about homeowners with septic tanks that discharge pollution into the groundwater and facing federal enforcement, including daily fines.

Maui Mayor Michael Victorino attended the court hearing. After it concluded, he issued a statement.

“This case has never been about winning or losing. It’s about clarity in the law so that we can move forward, confident as to the clear boundaries of the law so we can implement our programs and practices accordingly. I look forward to the Court’s decision.”

Hanna Bernard, executive director of the Hawaii Wildlife Fund that is among the environment groups suing the county, said she was optimistic that their side will prevail after listening to the justices' questions.

"It's been frustrating because we're watching the reef die while the case has been argued and won twice . . .  I'm glad that we will have resolution and I'm just really hopeful that it will be favorable," Bernard said.

Attorney David Henkin with Earthjustice, another of the environmental groups filing the suit, echoed Bernard's comments.

"All of the justices seem to be honing in on the important issues in the case," he said. "Both of the county and the EPA are arguing positions that would outline roadmaps for polluters to evade the Clean Water Act and the justices seem very aware of that situation."

However, Henkin said he wouldn't try to predict how the court might rule.

"I've been lawyering long enough not to try and read too much into a justice's with questions, in terms of how they're ultimately going to come out," he said. "I feel happy with the arguments because I think we did a good job of presenting our case . . . only time will tell."

County Council Chair Kelly King was not at the oral arguments. However, she explained that from what she's read about how the proceeding went, she thinks the justices may be leaning against Maui County.

"I think it's heartening to those of us who respect the Clean Water Act that the Supreme Court is actually going to uphold the rule of law, and of course the council voted to settle this," King said.

She noted that if Maui does not settle the case, and loses at the Supreme Court, the financial cost will be much greater.

"If we do get to the ruling without withdrawing from the Supreme Court, it's going to cost the County of Maui a lot of money because we will have to pay the full attorneys fees which they have waved in the settlement and that's over a million dollars," King said.

King also mentioned the cost to send those representing Maui County to Washington, DC to argue at the Supreme Court.

"[There's the] expense of the mayor, his entourage, and corp counsel traveling to DC for a few days at the expense of  like $3,000 per person," she said.

A spokesperson for Victornio confirmed that the mayor's airfare and hotel accomodations were estimated at about $3,000, but did not have figures for the corportation counsel's expenses. They also noted that Victorino will be visiting with Hawaii members of congress while in DC.

Maui County has until the Supreme Court releases the opinion to settle the case.

Reuters reports that a decision is expected by end of June.

This is a developing story. Please return for updates.

HPR news staff contributed to this report.