Maui Council Approves Water Pollution Settlement But Mayor May Have Final Word

Sep 20, 2019

The Maui County Council voted 5-4 on Friday to settle a Clean Water Act lawsuit headed to the U.S. Supreme Court. But a last-minute revelation from county attorneys has set up a showdown between councilmembers and Mayor Michael Victorino.

Maui County was sued in 2012 by a group of local environmental groups. They alleged a county waste water treatment facility in Lahaina violated the federal Clean Water Act. The case went all the way to the Supreme Court, where it is scheduled to be heard in November.

But for several months, a group of pro-environment lawmakers have been seeking a out-of-court settlement, rather than arguing the case before a majority-conservative Supreme Court. Council Chair Kelly King led the effort.

"We're always talking about how we want home rule and we want to be able to do things for ourselves in our own counties. This is what ... to me is home rule -- it's deciding we don't need the Supreme Court to settle this for us, it's deciding that we understand what the Clean Water Act is and we're going to adhere to it because it is the best solution for Maui County," King said during the deliberations.

The nine-member council approved the settlement resolution by a bare, single-vote majority, but not without a last-minute controversy. Right before the vote was scheduled to take place, county Deputy Corporation Counsel Edward Kushi revealed his office did not believe the council has the authority to withdraw the Supreme Court case.

"You pass whatever you want today, a resolution. But it's for the mayor to withdraw the appeal. It’s an executive function. This is what our opinion says. If he agrees with the resolution, he will tell my office to withdraw the appeal," Kushi testified before the council.

Up until that moment, councilmembers believed they had full authority under the County Charter to force a settlement. Supporters of a settlement say county lawyers have deliberately muddied the waters by withholding their opinion until the last minute, rather than disclosing it at a committee hearing earlier in the month.

Isaac Moriwaki, an Earthjustice attorney representing the community groups suing Maui County, gave his interpretation of the opinion outlined by Kushi, equating it to bureaucratic nitpicking.

"The act of withdrawing the appeal is solely an executive function and so only the mayor can do that. In other words, council can quote unquote settle matters definitively but actually filing the paper to the court saying, ‘We’re going to withdraw the appeal,’ is something only the mayor can do,” Moriwaki told HPR in a phone itnerview following Friday's vote. 

Exactly what Mayor Victorino plans to do is still unclear. In a written statement following the vote, Victorino said his administration would be reviewing its options in light of the council vote.