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Speaker 1: This is Bloomberg Law with June Grasso from Bloomberg Radio.

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Speaker 1: The Supreme Court has given environmentalists a partial wind on

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Speaker 1: the scope of the Clean Water Act. Joining me is

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Speaker 1: Pat Parental or professor of environmental law at Vermont Law School.

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Speaker 1: So Pat start by explaining the issue here about the

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Speaker 1: wastewater discharges. So this is the Maui sewage treatment plant

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Speaker 1: which injects it's treated effluent, the sewage into the groundwater.

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Speaker 1: And it's about half a mile from the Pacific Ocean

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Speaker 1: and this very popular surfing beach, and it travels through

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Speaker 1: the groundwater enters the Pacific Ocean, where the studies have

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Speaker 1: shown it's done quite a bit of damage to the

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Speaker 1: coral reef in that area. And of course, because the

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Speaker 1: treated sewage still has some bacteria in it, it creates

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Speaker 1: a potential health threat to people that are swimming in

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Speaker 1: the waters. And this has been going on for a

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Speaker 1: very long time. Neither the e p A nor the

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Speaker 1: state agency that regulates these kinds of discharges have ever

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Speaker 1: required a Clean Water Act permit for the injection of

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Speaker 1: this effluent into the groundwater. And so the Ninth Circuit,

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Speaker 1: in response to a citizen suit brought by a number

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Speaker 1: of groups in Hawaii ruled that as long as you

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Speaker 1: could fairly trace the pollutants that are in the ocean

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Speaker 1: back to these injection wells, that kind of discharge required

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Speaker 1: a permit under the Clean Water Act. And so that

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Speaker 1: was the question that went to the Supreme Court, when,

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Speaker 1: if ever, will a discharge through the groundwater into surface

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Speaker 1: water require a Clean Water Act permit? And what did

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Speaker 1: they decide? They decided that on some circumstances a permit

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Speaker 1: will be required. And it's interesting it was a Justice

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Speaker 1: Brier opinion. It was six to three, which is a

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Speaker 1: significant margin of victory for an environmental result. And most interestingly,

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Speaker 1: judged an ad joined the majority along with Chief Justice Roberts.

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Speaker 1: So it was a very strong opinion in that regard.

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Speaker 1: But Justice Brier didn't like the Ninth Circuit fairly traceable test.

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Speaker 1: He didn't like the argument the environmental groups were making

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Speaker 1: that as long as you could show a product that

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Speaker 1: the discharge was the proximate cause of the pollutants getting

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Speaker 1: into the ocean waters. He didn't like that test. E

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Speaker 1: p A at one time had a different test that

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Speaker 1: said if there was a direct hydrological connection between the

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Speaker 1: groundwater and the surface water that might require a permit.

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Speaker 1: So Justice Brier decided to come up with his own test,

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Speaker 1: which he called the functional equivalent of a direct discharge.

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Speaker 1: And nobody knows exactly what he means by the functional equivalent,

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Speaker 1: and including of course Justice Alito, who wrote a very

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Speaker 1: long and test the descent, saying this doesn't make any sense.

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Speaker 1: It's too vague for anybody to understand. Justice Brier outlined

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Speaker 1: about seven different factors that you would be considered in

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Speaker 1: determining whether there was a functional equivalent of a direct discharge.

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Speaker 1: The most important elements, as Justice Prior said, is time

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Speaker 1: and distance. In other words, how long does it take

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Speaker 1: for the pollutant to travel from the point source through

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Speaker 1: the groundwater into the surface water. But he didn't say,

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Speaker 1: you know how much time or how much distance. So

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Speaker 1: that's what the lower courts are now going to have

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Speaker 1: to figure out. So did it revolve around the word

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Speaker 1: from that? Was? That was really the critical word? Justice

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Speaker 1: Alito said, It's a combination of what what does the

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Speaker 1: point source definition mean, what does the addition of a

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Speaker 1: pollutant mean? And what does from mean? But I think, yes,

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Speaker 1: I think that the key was is the pollutant in

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Speaker 1: the ocean water coming from the injection wells or from

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Speaker 1: the groundwater, And of course, in a sense it's both.

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Speaker 1: But the conservative justices of the court Alito Thomas, course

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Speaker 1: it's They wanted a really strict bright line rule that

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Speaker 1: said unless there is a direct discharge from a point

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Speaker 1: source like a pipe or a ditch or something like that,

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Speaker 1: it's just not regulated as a discharge is then addressed

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Speaker 1: as a non point source problem, and that's up to

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Speaker 1: the individual states to decide how to deal with that.

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Speaker 1: So that element introduces a familiar theme that we see

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Speaker 1: in these environmental cases, which is the federalism concept where

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Speaker 1: does federal law end and state law begins? And the

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Speaker 1: difference between a point source discharge and a nonpoint source

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Speaker 1: pollution problem gets that that federalism question. So will this

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Speaker 1: decision make it more difficult for property owners to predict

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Speaker 1: whether they need a federal permit or not? I think

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Speaker 1: it will. Actually, Brier's seven factor tests are not even exhaustive.

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Speaker 1: He doesn't indicate which ones are the most important ones.

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Speaker 1: So you're left with trying to figure out how far

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Speaker 1: away from surface waters can I be before I have

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Speaker 1: to worry about an activity that either either injecting waste

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Speaker 1: into the groundwater or just you know, activities that involved

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Speaker 1: some runoff which might go into a ditch, which then

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Speaker 1: might seep down into the groundwater. It does that require

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Speaker 1: a permit. There's another case, the Kindred Morgan case, in

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Speaker 1: which a pipeline ruptured and the gas leaked into the groundwater.

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Speaker 1: Some of it was cleaned up, most of it wasn't.

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Speaker 1: That groundwater eventually took the gas into a river. So

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Speaker 1: that's going to be one of the early cases to decide.

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Speaker 1: Is that the kind of functional equivalent of a discharge?

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Speaker 1: Many many different questions are going to have to be

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Speaker 1: sorted out, and it will take years to figure this out.

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Speaker 1: Environmentalists are celebrating this as a victory, but this reversed

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Speaker 1: a decision in their favor with a broader standard at

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Speaker 1: the ninth Circuit. So where's the victory. Well, the victory

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Speaker 1: is in the bullet that was dodged, because if the

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Speaker 1: if the elito version of the Act applied, you could

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Speaker 1: have a big loophole in the law which would allow

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Speaker 1: people to move their pipelines back from the river, let's say,

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Speaker 1: and discharge to the ground and then it would flow

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Speaker 1: into the river that wouldn't be covered. There are a

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Speaker 1: lot of situations like these coal ash pits that are

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Speaker 1: all throughout the southeast where the coal country is, and

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Speaker 1: they're loaded with heavy metals and toxic chemicals and so forth,

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Speaker 1: and those have become major sources of both groundwater contamination

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Speaker 1: and river contamination. Those wouldn't be regulated under the Clean

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Speaker 1: Water Acts. So the real victory here, I think is

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Speaker 1: what didn't happen, which is that the court didn't decide

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Speaker 1: to create this fairly large loophole that people could avoid

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Speaker 1: the permit requirement. And this idea that it can dealt

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Speaker 1: with as a non point source problem is really fanciful. Um,

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Speaker 1: the reason we have so many UH rivers and lakes

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Speaker 1: that don't meet water quality standards is because of non

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Speaker 1: point source pollution and because there's no regulation of that

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Speaker 1: kind of pollution, no meaningful regulation, that's why we have

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Speaker 1: all these serious water quality problems. So the more that

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Speaker 1: you exempt polluting activities from the permit program, the harder

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Speaker 1: it is going to be to achieve water quality. So

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Speaker 1: the real victory here is what didn't happen. But this

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Speaker 1: has to go back now, to the Ninth Circuit or

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Speaker 1: to the lower court. It will go back to the

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Speaker 1: Ninth Circuit first. The Ninth Circuit will then send it

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Speaker 1: back down to the district Court in Hawaii, and then

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Speaker 1: the question will be, well this case finally gets settled.

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Speaker 1: You know, we've had to prior settlements in the case.

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Speaker 1: But the mayor of Maui, I think it is yes, Um,

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Speaker 1: Victorino um has mixed both of these settlements. Um. From

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Speaker 1: what I see, the county and the city both have

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Speaker 1: expended over four million dollars to litigate this case. Some

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Speaker 1: of these lawyers, these are pretty steep, right, and Um,

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Speaker 1: the question is, at what point did the taxpayers of

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Speaker 1: Maui say enough is enough, let's settle this case. So

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Speaker 1: I'm guessing there will be a settlement of the case.

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Speaker 1: But the mayor hasn't said yes or no to that yet.

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Speaker 1: So now let's talk about the lineup which you mentioned

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Speaker 1: six to three with Chief Justice John Roberts and Justice

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Speaker 1: Brett Kavanaugh joined the liberals. Was that a surprise? It

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Speaker 1: wasn't if you read the transcript or listened to the

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Speaker 1: oral argument when Justice Briar floated his functional equivalent idea.

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Speaker 1: Although Justice Roberts seems somewhat skeptical. It was pretty clear

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Speaker 1: because Briar said, well, this is something that we'll be discussing.

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Speaker 1: That was kind of acute, at least to me, that

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Speaker 1: Roberts and Briar had had some kind of discussion about

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Speaker 1: how to handle this case. Roberts clearly disagreed with the

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Speaker 1: argument that there would be no regulation any time a

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Speaker 1: discharge touched, as he put it, groundwater. He asked during

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Speaker 1: oral argument. He asked the petitioners lawyer Albert Lynn, you

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Speaker 1: mean to tell me, even if the discharge only goes

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Speaker 1: through two inches of groundwater, it wouldn't require a permit,

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Speaker 1: And Lynn said that's right, it wouldn't. So Roberts wasn't

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Speaker 1: buying this absolute rule that an indirect discharge could never

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Speaker 1: be regulated, But he clearly didn't like the Ninth Circuits

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Speaker 1: very broad, fairly traceable test, so I guess by default

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Speaker 1: he went along with Briar's decision. And it's critical that

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Speaker 1: Robert's assigned Briar the opinion UH instead of giving it

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Speaker 1: to someone else, so that gave Briar a chance to

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Speaker 1: really flesh out as much as he could his task

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Speaker 1: and also completely disagree with E p A's argument, the

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Speaker 1: Trump administration's argument, and so forth. So are you telling me,

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Speaker 1: Pat that they discussed the cases before the oral arguments

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Speaker 1: and they sort of line up people. Yeah. Yeah, shocking,

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Speaker 1: isn't it. Yes, they do. They have these conferences and

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Speaker 1: sometimes we learned this from the papers of Justice Blackman

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Speaker 1: and others that are now at the Library of Congress.

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Speaker 1: They actually take straw votes on some of these cases

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Speaker 1: in conference just to see kind of what what does

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Speaker 1: the lineup look like? And that tells the Chief Justice

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Speaker 1: sort of if he's going to go along with one

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Speaker 1: faction of the quarter or the other, who's going to

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Speaker 1: get the assignment to write the opinion. That's a critical

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Speaker 1: decision point in a in a lot of these cases.

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Speaker 1: So yeah, my guess is that Roberts had a fair

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Speaker 1: idea um that this was going to be a close vote,

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Speaker 1: and as I said, he was he clearly was not

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Speaker 1: going to go along with the petitioners argument, so he

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Speaker 1: landed more on the side of Briar than Alito, and

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Speaker 1: that's how the case came out. So that explains Roberts.

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Speaker 1: What about Kavanaugh, because when we've talked before, he has

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Speaker 1: not come out as a justice who would side with environmentalists. No.

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Speaker 1: In fact, he wrote a separate concurring opinion, very short

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Speaker 1: concurring opinion, in which he said what tips the scales

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Speaker 1: for him was his idol Justice Scalia and something that

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Speaker 1: Justice Scalia had said in this infamous Rapanos case, where

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Speaker 1: Scalia said the word He looked at both the word

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Speaker 1: from point source and to the waters of the United

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Speaker 1: States and said that that combination suggests to me that

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Speaker 1: it doesn't require a direct discharge. If Congress had meant

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Speaker 1: it to mean direct discharge, it would have used the

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Speaker 1: word into the surface water. By using the word too,

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Speaker 1: he said that suggested in some cases indirect discharges could

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Speaker 1: also be covered. Kavanaugh cited that as the decisive factor

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Speaker 1: for him inciding with Briar and Roberts and the more

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Speaker 1: liberal wing of the court. Still, I think a notable thing.

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Speaker 1: I mean, it would have been more natural I think

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Speaker 1: for cavanaught aside with Aldo on a question like this,

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Speaker 1: a very textualist kind of approach to the interpretation. But

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Speaker 1: he didn't. He went. He went with the more environmental point.

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Speaker 1: Is this also a message to the e p A

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Speaker 1: that they had flip flop too far. Yes, and that

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Speaker 1: all the justices noted, even Alito, that e p A

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Speaker 1: was entitled to no deference in this case because they

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Speaker 1: had been so inconsistent with the way that they looked

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Speaker 1: at this question of when would a discharge through groundwater

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Speaker 1: be regulated or not? And that that is true. But

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Speaker 1: I would also say that or time, e p A

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Speaker 1: has more often come down on the side of regulating

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Speaker 1: some of these instances of discharges through groundwater, and specifically,

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Speaker 1: in the Maui case, had filed a brief in the

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Speaker 1: Ninth Circuits supporting the assertion of Clean Water Act jurisdiction

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Speaker 1: over that particular activity. So all the justices were very

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Speaker 1: critical of e p A in the Maui case. So

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Speaker 1: is the difference in the e p A the difference

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Speaker 1: between an e p A under Obama and an e

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Speaker 1: p A under Trump or is it just a difference?

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Speaker 1: I think this one is more a matter that the

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Speaker 1: agency has just not been consistent through a variety of administrations. UM.

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Speaker 1: Certainly the Trump administration's approach didn't command any significant respect

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Speaker 1: in the decision in the Maui case. UM. And so

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Speaker 1: therefore I would say, you know, the Trump administration's approach

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Speaker 1: probably you know, was was more ex stream um than

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Speaker 1: prior administrations, but they've all struggled with how to regulate

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Speaker 1: this kind of activity. So now industry groups are up

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Speaker 1: in arms saying this is going to open the floodgates

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Speaker 1: to clean water litigation. Do you see that happening? I don't.

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Speaker 1: I think there is gonna be a period of time

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Speaker 1: for years actually where we're not going to have a

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Speaker 1: final resolution of this question of how often will these

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Speaker 1: kinds of indirect discharges be regulated. But if you look

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Speaker 1: back over the history of the clean wire at which

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Speaker 1: is approaching fifty years now, there actually is a very

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Speaker 1: very small number of instances where these indirect discharges have

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Speaker 1: actually been regulated, And the common theme and all of

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Speaker 1: them is the discharges are relatively close to the surface water,

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Speaker 1: and they have been traced by things like die studies,

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Speaker 1: so that you knew the pollutant you're finding in the

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Speaker 1: river was coming from this particular point source. Even though

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Speaker 1: it had to travel through groundwater, it was getting there

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Speaker 1: relatively quickly. So I don't. I don't see a huge

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Speaker 1: number of these cases. One area where this is going

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Speaker 1: to be actively litigated are these coal ash pits that

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Speaker 1: I mentioned, because there are thousands of them throughout coal country.

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Speaker 1: Most of them are online pits, most of them are

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Speaker 1: leaking pollutants into groundwater that gets into surface water. That's

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Speaker 1: going to be a very active area of litigation, but

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Speaker 1: it's it's hard to see that this is going to

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Speaker 1: be a huge new source of regulated activities. So besides

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Speaker 1: water treatment plants and the coal pits, what other facilities

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Speaker 1: does this ruling effect? Probably mining operations which also have

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Speaker 1: a lot of ponds, and the ponds themselves are considered

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Speaker 1: points sources, and if they overtop and float down into

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Speaker 1: rivers or lakes, or if they leak out the bottom

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Speaker 1: and go through the groundwater, you could probably see some

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Speaker 1: litigation over that kind of activity. But the sewage treatment

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Speaker 1: plants around the country that use these injection wells to

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Speaker 1: get rid of their treated effluent, I think those are

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Speaker 1: eligible or potential targets for some of this litigation. But

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Speaker 1: as I say, we haven't seen a whole lot of

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Speaker 1: that in the past. Now, whether all of a sudden

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Speaker 1: there will be a whole new wave of these citizen suits,

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Speaker 1: it's hard to say, but historically we haven't seen that.

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Speaker 1: Thanks Pat, that's Pat Parento of the Vermont Law School.

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Speaker 1: Thanks for listening to the Bloomberg Law Podcast. You can

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Speaker 1: subscribe and listen to the show on Apple Podcasts, SoundCloud,

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Speaker 1: and on bloomberg dot com slash podcasts. I'm June Brasso.

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Speaker 1: This is Bloomberg