The U.S. Supreme Court largely sided with environmentalists Thursday in a key wastewater pollution ruling that effectively closes a “large and obvious loophole” in the U.S. Clean Water Act.

water testing 375x210 U.S. Supreme Court closes large and obvious Clean Water Act loopholeWith Chief Justice John Roberts and Justice Brett Kavanaugh joining the top court’s four Democratic appointees, the 6-3 ruling found that the Clean Water Act prohibits polluters from discharging waste into oceans, rivers, and other navigable bodies of water without a permit. This standard applies even if the wastewater or other pollution enters the water indirectly, such as when it is injected into the ground and travels through the ground to a stream, ocean, lake, or river.

The case started in Maui, Hawaii, as a local water pollution dispute centering on a coral reef that environmental groups say has been ravaged by pollution from the Lahaina Wastewater Reclamation Facility, the main treatment plant for West Maui. The facility maintains four wells that collectively receive about 4 million gallons of sewage daily. Much of that waste seeps into the ground and travels to the ocean.

The Hawaii Wildlife Fund and other environmental groups sued Maui County to stop the constant influx of polluted water into the Pacific Ocean.  A U.S. District court sided with the environmentalists and the 9th U.S. Circuit Court of Appeals upheld that decision on appeal. Maui County and the U.S. Department of Justice maintained that the Clean Water Act did not apply to pollution that traveled through groundwater first and appealed those decisions to the top court.

The Supreme Court did find that the lower court’s ruling requiring permits when pollutants are “fairly traceable” was too broad for a regulatory standard. Justice Stephen Breyer, who authored the court’s opinion, wrote that the Clean Water Act “require[s] a permit if the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters.”

Justice Breyer said that a narrower interpretation was needed to prevent permit requirements in “surprising, even bizarre circumstances,” such as pollution carried by birds to the water or “in more mundane instances, the 100-year migration of pollutants through 250 miles of groundwater to a river.”

The three dissenting justices — Neil Gorsuch, Clarence Thomas and Samuel Alito, held a more black and white approach, saying they would have required a federal permit only for direct pollution released directly into navigable waters.

The majority took issue with that extreme stance because it preserves a blaring loophole that polluters everywhere could take advantage of. “We do not see how Congress could have intended to create such a large and obvious loophole in one of the key regulatory innovations of the Clean Water Act,” the opinion stated.

If the court allowed the loophole to stand, a pipe owner could “simply move the pipe back, perhaps only a few yards, so that the pollution must travel through at least some groundwater before reaching the sea,” the court’s opinion stated.

“The Supreme Court has rejected the Trump administration’s effort to blow a big hole in the Clean Water Act’s protections for rivers, lakes, and oceans,” said David Henkin, an Earthjustice attorney who argued the case before the court.

“This decision is a huge victory for clean water,” he said. “We are glad the Court has recognized the importance of protecting clean water for all Americans.”

Beasley Allen lawyers are investigating other water contamination cases. If you have any questions on this subject, contact Rhon Jones, Rick Stratton or Ryan Kral, lawyers in our firm’s Toxic Torts Section.

Additional sources:
CNN
Quartz
CNBC

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