WEBVTT - Behind Supreme Court’s Clean Water Decision 0:00:00.560 --> 0:00:05.320 This is Bloomberg Law with June Grasso from Bloomberg Radio. 0:00:05.680 --> 0:00:08.960 The Supreme Court has given environmentalists a partial wind on 0:00:09.000 --> 0:00:11.719 the scope of the Clean Water Act. Joining me is 0:00:11.760 --> 0:00:15.200 Pat Parental or professor of environmental law at Vermont Law School. 0:00:15.720 --> 0:00:18.799 So Pat start by explaining the issue here about the 0:00:18.840 --> 0:00:24.520 wastewater discharges. So this is the Maui sewage treatment plant 0:00:24.960 --> 0:00:30.120 which injects it's treated effluent, the sewage into the groundwater. 0:00:30.840 --> 0:00:34.040 And it's about half a mile from the Pacific Ocean 0:00:34.080 --> 0:00:37.640 and this very popular surfing beach, and it travels through 0:00:37.680 --> 0:00:42.239 the groundwater enters the Pacific Ocean, where the studies have 0:00:42.360 --> 0:00:44.239 shown it's done quite a bit of damage to the 0:00:44.280 --> 0:00:47.440 coral reef in that area. And of course, because the 0:00:47.520 --> 0:00:51.639 treated sewage still has some bacteria in it, it creates 0:00:51.640 --> 0:00:54.600 a potential health threat to people that are swimming in 0:00:54.640 --> 0:00:56.760 the waters. And this has been going on for a 0:00:56.840 --> 0:01:00.680 very long time. Neither the e p A nor the 0:01:00.760 --> 0:01:05.240 state agency that regulates these kinds of discharges have ever 0:01:05.400 --> 0:01:09.040 required a Clean Water Act permit for the injection of 0:01:09.080 --> 0:01:12.640 this effluent into the groundwater. And so the Ninth Circuit, 0:01:12.840 --> 0:01:16.600 in response to a citizen suit brought by a number 0:01:16.640 --> 0:01:19.640 of groups in Hawaii ruled that as long as you 0:01:19.680 --> 0:01:22.800 could fairly trace the pollutants that are in the ocean 0:01:22.920 --> 0:01:27.360 back to these injection wells, that kind of discharge required 0:01:27.400 --> 0:01:29.640 a permit under the Clean Water Act. And so that 0:01:29.720 --> 0:01:32.399 was the question that went to the Supreme Court, when, 0:01:32.640 --> 0:01:36.840 if ever, will a discharge through the groundwater into surface 0:01:36.880 --> 0:01:41.160 water require a Clean Water Act permit? And what did 0:01:41.240 --> 0:01:46.280 they decide? They decided that on some circumstances a permit 0:01:46.319 --> 0:01:49.760 will be required. And it's interesting it was a Justice 0:01:49.840 --> 0:01:53.800 Brier opinion. It was six to three, which is a 0:01:53.840 --> 0:01:59.440 significant margin of victory for an environmental result. And most interestingly, 0:01:59.520 --> 0:02:03.320 judged an ad joined the majority along with Chief Justice Roberts. 0:02:03.360 --> 0:02:06.000 So it was a very strong opinion in that regard. 0:02:06.040 --> 0:02:10.359 But Justice Brier didn't like the Ninth Circuit fairly traceable test. 0:02:10.600 --> 0:02:14.000 He didn't like the argument the environmental groups were making 0:02:14.320 --> 0:02:16.320 that as long as you could show a product that 0:02:16.360 --> 0:02:20.519 the discharge was the proximate cause of the pollutants getting 0:02:20.560 --> 0:02:23.760 into the ocean waters. He didn't like that test. E 0:02:23.919 --> 0:02:26.000 p A at one time had a different test that 0:02:26.120 --> 0:02:30.000 said if there was a direct hydrological connection between the 0:02:30.040 --> 0:02:33.360 groundwater and the surface water that might require a permit. 0:02:33.600 --> 0:02:36.560 So Justice Brier decided to come up with his own test, 0:02:36.960 --> 0:02:40.840 which he called the functional equivalent of a direct discharge. 0:02:41.360 --> 0:02:45.400 And nobody knows exactly what he means by the functional equivalent, 0:02:45.440 --> 0:02:48.760 and including of course Justice Alito, who wrote a very 0:02:48.800 --> 0:02:53.080 long and test the descent, saying this doesn't make any sense. 0:02:53.280 --> 0:02:57.640 It's too vague for anybody to understand. Justice Brier outlined 0:02:57.680 --> 0:03:01.400 about seven different factors that you would be considered in 0:03:01.480 --> 0:03:05.359 determining whether there was a functional equivalent of a direct discharge. 0:03:05.440 --> 0:03:09.519 The most important elements, as Justice Prior said, is time 0:03:09.560 --> 0:03:12.560 and distance. In other words, how long does it take 0:03:12.600 --> 0:03:15.440 for the pollutant to travel from the point source through 0:03:15.520 --> 0:03:18.760 the groundwater into the surface water. But he didn't say, 0:03:19.200 --> 0:03:21.720 you know how much time or how much distance. So 0:03:22.240 --> 0:03:23.920 that's what the lower courts are now going to have 0:03:23.960 --> 0:03:27.079 to figure out. So did it revolve around the word 0:03:27.400 --> 0:03:30.919 from that? Was? That was really the critical word? Justice 0:03:30.960 --> 0:03:35.200 Alito said, It's a combination of what what does the 0:03:35.200 --> 0:03:39.120 point source definition mean, what does the addition of a 0:03:39.160 --> 0:03:42.880 pollutant mean? And what does from mean? But I think, yes, 0:03:42.960 --> 0:03:45.920 I think that the key was is the pollutant in 0:03:45.960 --> 0:03:50.880 the ocean water coming from the injection wells or from 0:03:51.280 --> 0:03:54.080 the groundwater, And of course, in a sense it's both. 0:03:54.480 --> 0:03:59.560 But the conservative justices of the court Alito Thomas, course 0:03:59.640 --> 0:04:02.880 it's They wanted a really strict bright line rule that 0:04:02.960 --> 0:04:06.400 said unless there is a direct discharge from a point 0:04:06.400 --> 0:04:09.800 source like a pipe or a ditch or something like that, 0:04:10.000 --> 0:04:13.720 it's just not regulated as a discharge is then addressed 0:04:13.720 --> 0:04:16.880 as a non point source problem, and that's up to 0:04:16.920 --> 0:04:20.000 the individual states to decide how to deal with that. 0:04:20.120 --> 0:04:23.960 So that element introduces a familiar theme that we see 0:04:24.400 --> 0:04:28.919 in these environmental cases, which is the federalism concept where 0:04:28.920 --> 0:04:33.279 does federal law end and state law begins? And the 0:04:33.360 --> 0:04:38.360 difference between a point source discharge and a nonpoint source 0:04:38.640 --> 0:04:43.240 pollution problem gets that that federalism question. So will this 0:04:43.400 --> 0:04:47.679 decision make it more difficult for property owners to predict 0:04:47.720 --> 0:04:50.599 whether they need a federal permit or not? I think 0:04:50.640 --> 0:04:55.480 it will. Actually, Brier's seven factor tests are not even exhaustive. 0:04:55.800 --> 0:04:58.760 He doesn't indicate which ones are the most important ones. 0:04:59.200 --> 0:05:02.520 So you're left with trying to figure out how far 0:05:02.600 --> 0:05:06.800 away from surface waters can I be before I have 0:05:06.960 --> 0:05:10.599 to worry about an activity that either either injecting waste 0:05:10.640 --> 0:05:14.000 into the groundwater or just you know, activities that involved 0:05:14.040 --> 0:05:17.080 some runoff which might go into a ditch, which then 0:05:17.200 --> 0:05:20.919 might seep down into the groundwater. It does that require 0:05:20.960 --> 0:05:24.880 a permit. There's another case, the Kindred Morgan case, in 0:05:24.960 --> 0:05:29.200 which a pipeline ruptured and the gas leaked into the groundwater. 0:05:29.520 --> 0:05:31.719 Some of it was cleaned up, most of it wasn't. 0:05:31.960 --> 0:05:35.800 That groundwater eventually took the gas into a river. So 0:05:36.160 --> 0:05:38.600 that's going to be one of the early cases to decide. 0:05:38.880 --> 0:05:42.040 Is that the kind of functional equivalent of a discharge? 0:05:42.240 --> 0:05:44.240 Many many different questions are going to have to be 0:05:44.320 --> 0:05:47.200 sorted out, and it will take years to figure this out. 0:05:47.680 --> 0:05:51.680 Environmentalists are celebrating this as a victory, but this reversed 0:05:51.720 --> 0:05:56.240 a decision in their favor with a broader standard at 0:05:56.240 --> 0:06:00.000 the ninth Circuit. So where's the victory. Well, the victory 0:06:00.279 --> 0:06:04.359 is in the bullet that was dodged, because if the 0:06:04.520 --> 0:06:09.440 if the elito version of the Act applied, you could 0:06:09.520 --> 0:06:12.559 have a big loophole in the law which would allow 0:06:12.600 --> 0:06:18.000 people to move their pipelines back from the river, let's say, 0:06:18.080 --> 0:06:20.320 and discharge to the ground and then it would flow 0:06:20.360 --> 0:06:23.120 into the river that wouldn't be covered. There are a 0:06:23.200 --> 0:06:27.560 lot of situations like these coal ash pits that are 0:06:27.600 --> 0:06:31.720 all throughout the southeast where the coal country is, and 0:06:31.880 --> 0:06:35.279 they're loaded with heavy metals and toxic chemicals and so forth, 0:06:35.640 --> 0:06:40.080 and those have become major sources of both groundwater contamination 0:06:40.440 --> 0:06:45.320 and river contamination. Those wouldn't be regulated under the Clean 0:06:45.360 --> 0:06:48.640 Water Acts. So the real victory here, I think is 0:06:48.680 --> 0:06:52.520 what didn't happen, which is that the court didn't decide 0:06:52.560 --> 0:06:57.080 to create this fairly large loophole that people could avoid 0:06:57.120 --> 0:07:00.400 the permit requirement. And this idea that it can dealt 0:07:00.440 --> 0:07:06.960 with as a non point source problem is really fanciful. Um, 0:07:07.080 --> 0:07:10.480 the reason we have so many UH rivers and lakes 0:07:10.480 --> 0:07:14.040 that don't meet water quality standards is because of non 0:07:14.080 --> 0:07:18.120 point source pollution and because there's no regulation of that 0:07:18.240 --> 0:07:22.000 kind of pollution, no meaningful regulation, that's why we have 0:07:22.080 --> 0:07:25.920 all these serious water quality problems. So the more that 0:07:26.000 --> 0:07:31.240 you exempt polluting activities from the permit program, the harder 0:07:31.280 --> 0:07:34.120 it is going to be to achieve water quality. So 0:07:34.200 --> 0:07:38.000 the real victory here is what didn't happen. But this 0:07:38.040 --> 0:07:40.880 has to go back now, to the Ninth Circuit or 0:07:40.920 --> 0:07:43.280 to the lower court. It will go back to the 0:07:43.400 --> 0:07:46.480 Ninth Circuit first. The Ninth Circuit will then send it 0:07:46.520 --> 0:07:49.520 back down to the district Court in Hawaii, and then 0:07:49.560 --> 0:07:53.080 the question will be, well this case finally gets settled. 0:07:53.120 --> 0:07:56.640 You know, we've had to prior settlements in the case. 0:07:56.720 --> 0:08:00.720 But the mayor of Maui, I think it is yes, Um, 0:08:01.280 --> 0:08:06.600 Victorino um has mixed both of these settlements. Um. From 0:08:06.600 --> 0:08:10.200 what I see, the county and the city both have 0:08:10.360 --> 0:08:14.240 expended over four million dollars to litigate this case. Some 0:08:14.320 --> 0:08:17.840 of these lawyers, these are pretty steep, right, and Um, 0:08:17.880 --> 0:08:20.840 the question is, at what point did the taxpayers of 0:08:20.920 --> 0:08:23.800 Maui say enough is enough, let's settle this case. So 0:08:24.240 --> 0:08:27.000 I'm guessing there will be a settlement of the case. 0:08:27.560 --> 0:08:30.440 But the mayor hasn't said yes or no to that yet. 0:08:30.720 --> 0:08:33.199 So now let's talk about the lineup which you mentioned 0:08:33.280 --> 0:08:37.120 six to three with Chief Justice John Roberts and Justice 0:08:37.160 --> 0:08:41.920 Brett Kavanaugh joined the liberals. Was that a surprise? It 0:08:42.000 --> 0:08:44.800 wasn't if you read the transcript or listened to the 0:08:44.960 --> 0:08:49.559 oral argument when Justice Briar floated his functional equivalent idea. 0:08:50.320 --> 0:08:54.840 Although Justice Roberts seems somewhat skeptical. It was pretty clear 0:08:54.880 --> 0:08:58.479 because Briar said, well, this is something that we'll be discussing. 0:08:58.880 --> 0:09:01.880 That was kind of acute, at least to me, that 0:09:02.160 --> 0:09:06.280 Roberts and Briar had had some kind of discussion about 0:09:06.320 --> 0:09:11.719 how to handle this case. Roberts clearly disagreed with the 0:09:11.840 --> 0:09:16.079 argument that there would be no regulation any time a 0:09:16.280 --> 0:09:20.200 discharge touched, as he put it, groundwater. He asked during 0:09:20.600 --> 0:09:25.360 oral argument. He asked the petitioners lawyer Albert Lynn, you 0:09:25.360 --> 0:09:27.680 mean to tell me, even if the discharge only goes 0:09:27.720 --> 0:09:31.520 through two inches of groundwater, it wouldn't require a permit, 0:09:31.600 --> 0:09:35.000 And Lynn said that's right, it wouldn't. So Roberts wasn't 0:09:35.040 --> 0:09:39.760 buying this absolute rule that an indirect discharge could never 0:09:39.840 --> 0:09:43.120 be regulated, But he clearly didn't like the Ninth Circuits 0:09:43.240 --> 0:09:47.839 very broad, fairly traceable test, so I guess by default 0:09:48.160 --> 0:09:51.720 he went along with Briar's decision. And it's critical that 0:09:52.120 --> 0:09:57.240 Robert's assigned Briar the opinion UH instead of giving it 0:09:57.280 --> 0:09:59.800 to someone else, so that gave Briar a chance to 0:10:00.040 --> 0:10:03.480 really flesh out as much as he could his task 0:10:04.040 --> 0:10:08.040 and also completely disagree with E p A's argument, the 0:10:08.080 --> 0:10:11.800 Trump administration's argument, and so forth. So are you telling me, 0:10:11.920 --> 0:10:16.160 Pat that they discussed the cases before the oral arguments 0:10:16.200 --> 0:10:19.720 and they sort of line up people. Yeah. Yeah, shocking, 0:10:19.800 --> 0:10:22.080 isn't it. Yes, they do. They have these conferences and 0:10:22.240 --> 0:10:27.479 sometimes we learned this from the papers of Justice Blackman 0:10:27.840 --> 0:10:30.000 and others that are now at the Library of Congress. 0:10:30.600 --> 0:10:34.200 They actually take straw votes on some of these cases 0:10:34.200 --> 0:10:36.439 in conference just to see kind of what what does 0:10:36.480 --> 0:10:40.120 the lineup look like? And that tells the Chief Justice 0:10:40.480 --> 0:10:43.480 sort of if he's going to go along with one 0:10:43.559 --> 0:10:45.360 faction of the quarter or the other, who's going to 0:10:45.440 --> 0:10:48.240 get the assignment to write the opinion. That's a critical 0:10:48.720 --> 0:10:51.240 decision point in a in a lot of these cases. 0:10:51.240 --> 0:10:54.679 So yeah, my guess is that Roberts had a fair 0:10:54.760 --> 0:10:58.840 idea um that this was going to be a close vote, 0:10:59.320 --> 0:11:01.360 and as I said, he was he clearly was not 0:11:01.400 --> 0:11:03.840 going to go along with the petitioners argument, so he 0:11:04.040 --> 0:11:07.120 landed more on the side of Briar than Alito, and 0:11:07.160 --> 0:11:10.480 that's how the case came out. So that explains Roberts. 0:11:10.559 --> 0:11:14.760 What about Kavanaugh, because when we've talked before, he has 0:11:14.800 --> 0:11:20.440 not come out as a justice who would side with environmentalists. No. 0:11:20.920 --> 0:11:24.640 In fact, he wrote a separate concurring opinion, very short 0:11:25.240 --> 0:11:27.560 concurring opinion, in which he said what tips the scales 0:11:27.679 --> 0:11:31.840 for him was his idol Justice Scalia and something that 0:11:31.960 --> 0:11:36.520 Justice Scalia had said in this infamous Rapanos case, where 0:11:36.520 --> 0:11:40.040 Scalia said the word He looked at both the word 0:11:40.160 --> 0:11:44.760 from point source and to the waters of the United 0:11:44.800 --> 0:11:48.880 States and said that that combination suggests to me that 0:11:49.000 --> 0:11:52.800 it doesn't require a direct discharge. If Congress had meant 0:11:52.800 --> 0:11:55.720 it to mean direct discharge, it would have used the 0:11:55.760 --> 0:12:00.640 word into the surface water. By using the word too, 0:12:00.720 --> 0:12:05.120 he said that suggested in some cases indirect discharges could 0:12:05.160 --> 0:12:09.720 also be covered. Kavanaugh cited that as the decisive factor 0:12:09.840 --> 0:12:14.760 for him inciding with Briar and Roberts and the more 0:12:14.840 --> 0:12:19.280 liberal wing of the court. Still, I think a notable thing. 0:12:19.400 --> 0:12:21.839 I mean, it would have been more natural I think 0:12:22.280 --> 0:12:26.199 for cavanaught aside with Aldo on a question like this, 0:12:26.920 --> 0:12:30.920 a very textualist kind of approach to the interpretation. But 0:12:31.000 --> 0:12:33.840 he didn't. He went. He went with the more environmental point. 0:12:34.480 --> 0:12:37.000 Is this also a message to the e p A 0:12:37.240 --> 0:12:40.520 that they had flip flop too far. Yes, and that 0:12:40.960 --> 0:12:44.800 all the justices noted, even Alito, that e p A 0:12:45.120 --> 0:12:48.800 was entitled to no deference in this case because they 0:12:48.840 --> 0:12:51.920 had been so inconsistent with the way that they looked 0:12:51.960 --> 0:12:54.840 at this question of when would a discharge through groundwater 0:12:55.320 --> 0:12:58.440 be regulated or not? And that that is true. But 0:12:58.520 --> 0:13:01.440 I would also say that or time, e p A 0:13:01.559 --> 0:13:05.080 has more often come down on the side of regulating 0:13:05.480 --> 0:13:09.599 some of these instances of discharges through groundwater, and specifically, 0:13:09.960 --> 0:13:12.640 in the Maui case, had filed a brief in the 0:13:12.760 --> 0:13:16.880 Ninth Circuits supporting the assertion of Clean Water Act jurisdiction 0:13:17.320 --> 0:13:21.679 over that particular activity. So all the justices were very 0:13:21.679 --> 0:13:24.440 critical of e p A in the Maui case. So 0:13:24.760 --> 0:13:26.880 is the difference in the e p A the difference 0:13:26.960 --> 0:13:29.120 between an e p A under Obama and an e 0:13:29.240 --> 0:13:32.160 p A under Trump or is it just a difference? 0:13:32.760 --> 0:13:35.200 I think this one is more a matter that the 0:13:35.240 --> 0:13:41.600 agency has just not been consistent through a variety of administrations. UM. 0:13:41.640 --> 0:13:48.319 Certainly the Trump administration's approach didn't command any significant respect 0:13:48.840 --> 0:13:52.440 in the decision in the Maui case. UM. And so 0:13:52.520 --> 0:13:57.080 therefore I would say, you know, the Trump administration's approach 0:13:57.320 --> 0:14:01.679 probably you know, was was more ex stream um than 0:14:01.880 --> 0:14:05.960 prior administrations, but they've all struggled with how to regulate 0:14:06.040 --> 0:14:09.880 this kind of activity. So now industry groups are up 0:14:09.880 --> 0:14:12.800 in arms saying this is going to open the floodgates 0:14:12.880 --> 0:14:18.280 to clean water litigation. Do you see that happening? I don't. 0:14:18.440 --> 0:14:22.440 I think there is gonna be a period of time 0:14:22.520 --> 0:14:26.600 for years actually where we're not going to have a 0:14:26.880 --> 0:14:32.520 final resolution of this question of how often will these 0:14:32.640 --> 0:14:35.960 kinds of indirect discharges be regulated. But if you look 0:14:36.000 --> 0:14:38.600 back over the history of the clean wire at which 0:14:38.640 --> 0:14:42.680 is approaching fifty years now, there actually is a very 0:14:42.840 --> 0:14:46.880 very small number of instances where these indirect discharges have 0:14:47.040 --> 0:14:50.360 actually been regulated, And the common theme and all of 0:14:50.400 --> 0:14:54.760 them is the discharges are relatively close to the surface water, 0:14:55.280 --> 0:14:58.440 and they have been traced by things like die studies, 0:14:58.800 --> 0:15:01.640 so that you knew the pollutant you're finding in the 0:15:01.760 --> 0:15:05.320 river was coming from this particular point source. Even though 0:15:05.400 --> 0:15:08.440 it had to travel through groundwater, it was getting there 0:15:08.480 --> 0:15:12.200 relatively quickly. So I don't. I don't see a huge 0:15:12.280 --> 0:15:15.720 number of these cases. One area where this is going 0:15:15.760 --> 0:15:19.240 to be actively litigated are these coal ash pits that 0:15:19.280 --> 0:15:24.240 I mentioned, because there are thousands of them throughout coal country. 0:15:24.320 --> 0:15:27.240 Most of them are online pits, most of them are 0:15:27.320 --> 0:15:32.800 leaking pollutants into groundwater that gets into surface water. That's 0:15:32.800 --> 0:15:35.800 going to be a very active area of litigation, but 0:15:35.920 --> 0:15:37.680 it's it's hard to see that this is going to 0:15:37.800 --> 0:15:42.960 be a huge new source of regulated activities. So besides 0:15:43.200 --> 0:15:47.640 water treatment plants and the coal pits, what other facilities 0:15:47.720 --> 0:15:52.400 does this ruling effect? Probably mining operations which also have 0:15:52.520 --> 0:15:56.240 a lot of ponds, and the ponds themselves are considered 0:15:56.280 --> 0:16:00.640 points sources, and if they overtop and float down into 0:16:00.800 --> 0:16:03.840 rivers or lakes, or if they leak out the bottom 0:16:03.840 --> 0:16:06.640 and go through the groundwater, you could probably see some 0:16:06.760 --> 0:16:10.760 litigation over that kind of activity. But the sewage treatment 0:16:10.840 --> 0:16:14.280 plants around the country that use these injection wells to 0:16:14.360 --> 0:16:18.080 get rid of their treated effluent, I think those are 0:16:18.160 --> 0:16:22.480 eligible or potential targets for some of this litigation. But 0:16:22.520 --> 0:16:24.760 as I say, we haven't seen a whole lot of 0:16:24.800 --> 0:16:27.400 that in the past. Now, whether all of a sudden 0:16:27.880 --> 0:16:31.520 there will be a whole new wave of these citizen suits, 0:16:31.280 --> 0:16:34.440 it's hard to say, but historically we haven't seen that. 0:16:34.840 --> 0:16:38.000 Thanks Pat, that's Pat Parento of the Vermont Law School. 0:16:39.520 --> 0:16:42.480 Thanks for listening to the Bloomberg Law Podcast. You can 0:16:42.520 --> 0:16:46.240 subscribe and listen to the show on Apple Podcasts, SoundCloud, 0:16:46.320 --> 0:16:50.200 and on bloomberg dot com slash podcasts. I'm June Brasso. 0:16:50.720 --> 0:16:51.960 This is Bloomberg