Speaker 1: This is Bloomberg Law with June Grasso from Bloomberg Radio.
Speaker 1: The Supreme Court has given environmentalists a partial wind on
Speaker 1: the scope of the Clean Water Act. Joining me is
Speaker 1: Pat Parental or professor of environmental law at Vermont Law School.
Speaker 1: So Pat start by explaining the issue here about the
Speaker 1: wastewater discharges. So this is the Maui sewage treatment plant
Speaker 1: which injects it's treated effluent, the sewage into the groundwater.
Speaker 1: And it's about half a mile from the Pacific Ocean
Speaker 1: and this very popular surfing beach, and it travels through
Speaker 1: the groundwater enters the Pacific Ocean, where the studies have
Speaker 1: shown it's done quite a bit of damage to the
Speaker 1: coral reef in that area. And of course, because the
Speaker 1: treated sewage still has some bacteria in it, it creates
Speaker 1: a potential health threat to people that are swimming in
Speaker 1: the waters. And this has been going on for a
Speaker 1: very long time. Neither the e p A nor the
Speaker 1: state agency that regulates these kinds of discharges have ever
Speaker 1: required a Clean Water Act permit for the injection of
Speaker 1: this effluent into the groundwater. And so the Ninth Circuit,
Speaker 1: in response to a citizen suit brought by a number
Speaker 1: of groups in Hawaii ruled that as long as you
Speaker 1: could fairly trace the pollutants that are in the ocean
Speaker 1: back to these injection wells, that kind of discharge required
Speaker 1: a permit under the Clean Water Act. And so that
Speaker 1: was the question that went to the Supreme Court, when,
Speaker 1: if ever, will a discharge through the groundwater into surface
Speaker 1: water require a Clean Water Act permit? And what did
Speaker 1: they decide? They decided that on some circumstances a permit
Speaker 1: will be required. And it's interesting it was a Justice
Speaker 1: Brier opinion. It was six to three, which is a
Speaker 1: significant margin of victory for an environmental result. And most interestingly,
Speaker 1: judged an ad joined the majority along with Chief Justice Roberts.
Speaker 1: So it was a very strong opinion in that regard.
Speaker 1: But Justice Brier didn't like the Ninth Circuit fairly traceable test.
Speaker 1: He didn't like the argument the environmental groups were making
Speaker 1: that as long as you could show a product that
Speaker 1: the discharge was the proximate cause of the pollutants getting
Speaker 1: into the ocean waters. He didn't like that test. E
Speaker 1: p A at one time had a different test that
Speaker 1: said if there was a direct hydrological connection between the
Speaker 1: groundwater and the surface water that might require a permit.
Speaker 1: So Justice Brier decided to come up with his own test,
Speaker 1: which he called the functional equivalent of a direct discharge.
Speaker 1: And nobody knows exactly what he means by the functional equivalent,
Speaker 1: and including of course Justice Alito, who wrote a very
Speaker 1: long and test the descent, saying this doesn't make any sense.
Speaker 1: It's too vague for anybody to understand. Justice Brier outlined
Speaker 1: about seven different factors that you would be considered in
Speaker 1: determining whether there was a functional equivalent of a direct discharge.
Speaker 1: The most important elements, as Justice Prior said, is time
Speaker 1: and distance. In other words, how long does it take
Speaker 1: for the pollutant to travel from the point source through
Speaker 1: the groundwater into the surface water. But he didn't say,
Speaker 1: you know how much time or how much distance. So
Speaker 1: that's what the lower courts are now going to have
Speaker 1: to figure out. So did it revolve around the word
Speaker 1: from that? Was? That was really the critical word? Justice
Speaker 1: Alito said, It's a combination of what what does the
Speaker 1: point source definition mean, what does the addition of a
Speaker 1: pollutant mean? And what does from mean? But I think, yes,
Speaker 1: I think that the key was is the pollutant in
Speaker 1: the ocean water coming from the injection wells or from
Speaker 1: the groundwater, And of course, in a sense it's both.
Speaker 1: But the conservative justices of the court Alito Thomas, course
Speaker 1: it's They wanted a really strict bright line rule that
Speaker 1: said unless there is a direct discharge from a point
Speaker 1: source like a pipe or a ditch or something like that,
Speaker 1: it's just not regulated as a discharge is then addressed
Speaker 1: as a non point source problem, and that's up to
Speaker 1: the individual states to decide how to deal with that.
Speaker 1: So that element introduces a familiar theme that we see
Speaker 1: in these environmental cases, which is the federalism concept where
Speaker 1: does federal law end and state law begins? And the
Speaker 1: difference between a point source discharge and a nonpoint source
Speaker 1: pollution problem gets that that federalism question. So will this
Speaker 1: decision make it more difficult for property owners to predict
Speaker 1: whether they need a federal permit or not? I think
Speaker 1: it will. Actually, Brier's seven factor tests are not even exhaustive.
Speaker 1: He doesn't indicate which ones are the most important ones.
Speaker 1: So you're left with trying to figure out how far
Speaker 1: away from surface waters can I be before I have
Speaker 1: to worry about an activity that either either injecting waste
Speaker 1: into the groundwater or just you know, activities that involved
Speaker 1: some runoff which might go into a ditch, which then
Speaker 1: might seep down into the groundwater. It does that require
Speaker 1: a permit. There's another case, the Kindred Morgan case, in
Speaker 1: which a pipeline ruptured and the gas leaked into the groundwater.
Speaker 1: Some of it was cleaned up, most of it wasn't.
Speaker 1: That groundwater eventually took the gas into a river. So
Speaker 1: that's going to be one of the early cases to decide.
Speaker 1: Is that the kind of functional equivalent of a discharge?
Speaker 1: Many many different questions are going to have to be
Speaker 1: sorted out, and it will take years to figure this out.
Speaker 1: Environmentalists are celebrating this as a victory, but this reversed
Speaker 1: a decision in their favor with a broader standard at
Speaker 1: the ninth Circuit. So where's the victory. Well, the victory
Speaker 1: is in the bullet that was dodged, because if the
Speaker 1: if the elito version of the Act applied, you could
Speaker 1: have a big loophole in the law which would allow
Speaker 1: people to move their pipelines back from the river, let's say,
Speaker 1: and discharge to the ground and then it would flow
Speaker 1: into the river that wouldn't be covered. There are a
Speaker 1: lot of situations like these coal ash pits that are
Speaker 1: all throughout the southeast where the coal country is, and
Speaker 1: they're loaded with heavy metals and toxic chemicals and so forth,
Speaker 1: and those have become major sources of both groundwater contamination
Speaker 1: and river contamination. Those wouldn't be regulated under the Clean
Speaker 1: Water Acts. So the real victory here, I think is
Speaker 1: what didn't happen, which is that the court didn't decide
Speaker 1: to create this fairly large loophole that people could avoid
Speaker 1: the permit requirement. And this idea that it can dealt
Speaker 1: with as a non point source problem is really fanciful. Um,
Speaker 1: the reason we have so many UH rivers and lakes
Speaker 1: that don't meet water quality standards is because of non
Speaker 1: point source pollution and because there's no regulation of that
Speaker 1: kind of pollution, no meaningful regulation, that's why we have
Speaker 1: all these serious water quality problems. So the more that
Speaker 1: you exempt polluting activities from the permit program, the harder
Speaker 1: it is going to be to achieve water quality. So
Speaker 1: the real victory here is what didn't happen. But this
Speaker 1: has to go back now, to the Ninth Circuit or
Speaker 1: to the lower court. It will go back to the
Speaker 1: Ninth Circuit first. The Ninth Circuit will then send it
Speaker 1: back down to the district Court in Hawaii, and then
Speaker 1: the question will be, well this case finally gets settled.
Speaker 1: You know, we've had to prior settlements in the case.
Speaker 1: But the mayor of Maui, I think it is yes, Um,
Speaker 1: Victorino um has mixed both of these settlements. Um. From
Speaker 1: what I see, the county and the city both have
Speaker 1: expended over four million dollars to litigate this case. Some
Speaker 1: of these lawyers, these are pretty steep, right, and Um,
Speaker 1: the question is, at what point did the taxpayers of
Speaker 1: Maui say enough is enough, let's settle this case. So
Speaker 1: I'm guessing there will be a settlement of the case.
Speaker 1: But the mayor hasn't said yes or no to that yet.
Speaker 1: So now let's talk about the lineup which you mentioned
Speaker 1: six to three with Chief Justice John Roberts and Justice
Speaker 1: Brett Kavanaugh joined the liberals. Was that a surprise? It
Speaker 1: wasn't if you read the transcript or listened to the
Speaker 1: oral argument when Justice Briar floated his functional equivalent idea.
Speaker 1: Although Justice Roberts seems somewhat skeptical. It was pretty clear
Speaker 1: because Briar said, well, this is something that we'll be discussing.
Speaker 1: That was kind of acute, at least to me, that
Speaker 1: Roberts and Briar had had some kind of discussion about
Speaker 1: how to handle this case. Roberts clearly disagreed with the
Speaker 1: argument that there would be no regulation any time a
Speaker 1: discharge touched, as he put it, groundwater. He asked during
Speaker 1: oral argument. He asked the petitioners lawyer Albert Lynn, you
Speaker 1: mean to tell me, even if the discharge only goes
Speaker 1: through two inches of groundwater, it wouldn't require a permit,
Speaker 1: And Lynn said that's right, it wouldn't. So Roberts wasn't
Speaker 1: buying this absolute rule that an indirect discharge could never
Speaker 1: be regulated, But he clearly didn't like the Ninth Circuits
Speaker 1: very broad, fairly traceable test, so I guess by default
Speaker 1: he went along with Briar's decision. And it's critical that
Speaker 1: Robert's assigned Briar the opinion UH instead of giving it
Speaker 1: to someone else, so that gave Briar a chance to
Speaker 1: really flesh out as much as he could his task
Speaker 1: and also completely disagree with E p A's argument, the
Speaker 1: Trump administration's argument, and so forth. So are you telling me,
Speaker 1: Pat that they discussed the cases before the oral arguments
Speaker 1: and they sort of line up people. Yeah. Yeah, shocking,
Speaker 1: isn't it. Yes, they do. They have these conferences and
Speaker 1: sometimes we learned this from the papers of Justice Blackman
Speaker 1: and others that are now at the Library of Congress.
Speaker 1: They actually take straw votes on some of these cases
Speaker 1: in conference just to see kind of what what does
Speaker 1: the lineup look like? And that tells the Chief Justice
Speaker 1: sort of if he's going to go along with one
Speaker 1: faction of the quarter or the other, who's going to
Speaker 1: get the assignment to write the opinion. That's a critical
Speaker 1: decision point in a in a lot of these cases.
Speaker 1: So yeah, my guess is that Roberts had a fair
Speaker 1: idea um that this was going to be a close vote,
Speaker 1: and as I said, he was he clearly was not
Speaker 1: going to go along with the petitioners argument, so he
Speaker 1: landed more on the side of Briar than Alito, and
Speaker 1: that's how the case came out. So that explains Roberts.
Speaker 1: What about Kavanaugh, because when we've talked before, he has
Speaker 1: not come out as a justice who would side with environmentalists. No.
Speaker 1: In fact, he wrote a separate concurring opinion, very short
Speaker 1: concurring opinion, in which he said what tips the scales
Speaker 1: for him was his idol Justice Scalia and something that
Speaker 1: Justice Scalia had said in this infamous Rapanos case, where
Speaker 1: Scalia said the word He looked at both the word
Speaker 1: from point source and to the waters of the United
Speaker 1: States and said that that combination suggests to me that
Speaker 1: it doesn't require a direct discharge. If Congress had meant
Speaker 1: it to mean direct discharge, it would have used the
Speaker 1: word into the surface water. By using the word too,
Speaker 1: he said that suggested in some cases indirect discharges could
Speaker 1: also be covered. Kavanaugh cited that as the decisive factor
Speaker 1: for him inciding with Briar and Roberts and the more
Speaker 1: liberal wing of the court. Still, I think a notable thing.
Speaker 1: I mean, it would have been more natural I think
Speaker 1: for cavanaught aside with Aldo on a question like this,
Speaker 1: a very textualist kind of approach to the interpretation. But
Speaker 1: he didn't. He went. He went with the more environmental point.
Speaker 1: Is this also a message to the e p A
Speaker 1: that they had flip flop too far. Yes, and that
Speaker 1: all the justices noted, even Alito, that e p A
Speaker 1: was entitled to no deference in this case because they
Speaker 1: had been so inconsistent with the way that they looked
Speaker 1: at this question of when would a discharge through groundwater
Speaker 1: be regulated or not? And that that is true. But
Speaker 1: I would also say that or time, e p A
Speaker 1: has more often come down on the side of regulating
Speaker 1: some of these instances of discharges through groundwater, and specifically,
Speaker 1: in the Maui case, had filed a brief in the
Speaker 1: Ninth Circuits supporting the assertion of Clean Water Act jurisdiction
Speaker 1: over that particular activity. So all the justices were very
Speaker 1: critical of e p A in the Maui case. So
Speaker 1: is the difference in the e p A the difference
Speaker 1: between an e p A under Obama and an e
Speaker 1: p A under Trump or is it just a difference?
Speaker 1: I think this one is more a matter that the
Speaker 1: agency has just not been consistent through a variety of administrations. UM.
Speaker 1: Certainly the Trump administration's approach didn't command any significant respect
Speaker 1: in the decision in the Maui case. UM. And so
Speaker 1: therefore I would say, you know, the Trump administration's approach
Speaker 1: probably you know, was was more ex stream um than
Speaker 1: prior administrations, but they've all struggled with how to regulate
Speaker 1: this kind of activity. So now industry groups are up
Speaker 1: in arms saying this is going to open the floodgates
Speaker 1: to clean water litigation. Do you see that happening? I don't.
Speaker 1: I think there is gonna be a period of time
Speaker 1: for years actually where we're not going to have a
Speaker 1: final resolution of this question of how often will these
Speaker 1: kinds of indirect discharges be regulated. But if you look
Speaker 1: back over the history of the clean wire at which
Speaker 1: is approaching fifty years now, there actually is a very
Speaker 1: very small number of instances where these indirect discharges have
Speaker 1: actually been regulated, And the common theme and all of
Speaker 1: them is the discharges are relatively close to the surface water,
Speaker 1: and they have been traced by things like die studies,
Speaker 1: so that you knew the pollutant you're finding in the
Speaker 1: river was coming from this particular point source. Even though
Speaker 1: it had to travel through groundwater, it was getting there
Speaker 1: relatively quickly. So I don't. I don't see a huge
Speaker 1: number of these cases. One area where this is going
Speaker 1: to be actively litigated are these coal ash pits that
Speaker 1: I mentioned, because there are thousands of them throughout coal country.
Speaker 1: Most of them are online pits, most of them are
Speaker 1: leaking pollutants into groundwater that gets into surface water. That's
Speaker 1: going to be a very active area of litigation, but
Speaker 1: it's it's hard to see that this is going to
Speaker 1: be a huge new source of regulated activities. So besides
Speaker 1: water treatment plants and the coal pits, what other facilities
Speaker 1: does this ruling effect? Probably mining operations which also have
Speaker 1: a lot of ponds, and the ponds themselves are considered
Speaker 1: points sources, and if they overtop and float down into
Speaker 1: rivers or lakes, or if they leak out the bottom
Speaker 1: and go through the groundwater, you could probably see some
Speaker 1: litigation over that kind of activity. But the sewage treatment
Speaker 1: plants around the country that use these injection wells to
Speaker 1: get rid of their treated effluent, I think those are
Speaker 1: eligible or potential targets for some of this litigation. But
Speaker 1: as I say, we haven't seen a whole lot of
Speaker 1: that in the past. Now, whether all of a sudden
Speaker 1: there will be a whole new wave of these citizen suits,
Speaker 1: it's hard to say, but historically we haven't seen that.
Speaker 1: Thanks Pat, that's Pat Parento of the Vermont Law School.
Speaker 1: Thanks for listening to the Bloomberg Law Podcast. You can
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Speaker 1: and on bloomberg dot com slash podcasts. I'm June Brasso.
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