1 00:00:03,520 --> 00:00:07,040 Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every 2 00:00:07,120 --> 00:00:09,680 Speaker 1: day we bring you insight an analysis into the most 3 00:00:09,720 --> 00:00:12,200 Speaker 1: important legal news of the day. You can find more 4 00:00:12,240 --> 00:00:16,160 Speaker 1: episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud 5 00:00:16,280 --> 00:00:19,840 Speaker 1: and on Bloomberg dot com slash podcasts. It's the biggest 6 00:00:19,960 --> 00:00:23,440 Speaker 1: environmental case of the term, involving pollution of the Pacific 7 00:00:23,440 --> 00:00:26,400 Speaker 1: Ocean off the coast of Maui. During oural arguments, the 8 00:00:26,520 --> 00:00:29,680 Speaker 1: justices seemed conflicted over the reach of the Clean Water 9 00:00:29,800 --> 00:00:33,440 Speaker 1: Act to cover treated waste water that environmentalists say is 10 00:00:33,520 --> 00:00:36,680 Speaker 1: damaging a coral reef there. Joining me is Pat Parento, 11 00:00:36,760 --> 00:00:39,440 Speaker 1: a professor of environmental law at the University of Vermont 12 00:00:39,520 --> 00:00:43,640 Speaker 1: Law School. So Pat breakdown the issue for us. So, 13 00:00:44,080 --> 00:00:47,879 Speaker 1: what's happening is the County of Maui in Hawaii is 14 00:00:47,960 --> 00:00:52,840 Speaker 1: discharging their sewage waste through an injection well that's within 15 00:00:52,880 --> 00:00:55,640 Speaker 1: about a half a mile of the ocean, and so 16 00:00:55,760 --> 00:00:59,320 Speaker 1: the wastewater goes down into the ground, through the groundwater, 17 00:00:59,440 --> 00:01:02,760 Speaker 1: and into the ocean where it's been causing pretty significant 18 00:01:02,800 --> 00:01:06,720 Speaker 1: harm to the reef system there. It also has bacteria, 19 00:01:06,800 --> 00:01:09,480 Speaker 1: of course in it, which is a potential threat to 20 00:01:09,560 --> 00:01:13,000 Speaker 1: the swimmers and surfers that use the beach, and they 21 00:01:13,240 --> 00:01:16,800 Speaker 1: don't have a permit under the Clean Water Act for 22 00:01:17,080 --> 00:01:21,080 Speaker 1: that kind of discharge, and they argue that because it's 23 00:01:21,120 --> 00:01:24,920 Speaker 1: going through the groundwater, they're not subject to the permit 24 00:01:24,959 --> 00:01:28,360 Speaker 1: requirements of the Clean Water Act. The Ninth Circuit, on 25 00:01:28,400 --> 00:01:30,800 Speaker 1: the other hand, held they were, and that they needed 26 00:01:30,800 --> 00:01:33,520 Speaker 1: to get a permit and comply with those terms, which 27 00:01:33,520 --> 00:01:36,720 Speaker 1: would protect the ocean waters. And that's the issue that's 28 00:01:36,760 --> 00:01:39,240 Speaker 1: up before the Supreme Court. This is the first time 29 00:01:39,280 --> 00:01:42,320 Speaker 1: the Supreme Court has been asked to rule on to 30 00:01:42,440 --> 00:01:46,760 Speaker 1: what extent are discharges through groundwater regulated under the Clean 31 00:01:46,760 --> 00:01:51,120 Speaker 1: Water Act. Pat it seemed from looking at a transcript 32 00:01:51,160 --> 00:01:55,240 Speaker 1: of the arguments that key justices weren't comfortable with either 33 00:01:55,280 --> 00:01:59,680 Speaker 1: side's argument. I think that's right. The County of Maui, 34 00:01:59,800 --> 00:02:03,640 Speaker 1: so ported by the Solicitor General the Trump administration, is 35 00:02:03,680 --> 00:02:07,680 Speaker 1: saying that only discharges that are direct from a point 36 00:02:07,720 --> 00:02:12,680 Speaker 1: source like a pipe, into navigable waters are regulated. And 37 00:02:12,760 --> 00:02:15,960 Speaker 1: when pressed, they even said, even if it only goes 38 00:02:16,000 --> 00:02:20,200 Speaker 1: two feet through groundwater before it reaches navigable waters, it's 39 00:02:20,240 --> 00:02:22,720 Speaker 1: not regulated. And I think it's fair to say a 40 00:02:22,760 --> 00:02:25,720 Speaker 1: majority of the justices are not buying that argument. On 41 00:02:25,760 --> 00:02:28,320 Speaker 1: the other hand, I think a majority of the justices 42 00:02:28,360 --> 00:02:32,360 Speaker 1: are not buying the Ninth Circuit's ruling that anything that 43 00:02:32,480 --> 00:02:35,760 Speaker 1: is quote fairly traceable from the point source to the 44 00:02:35,840 --> 00:02:40,280 Speaker 1: navigable water is covered. So it seems like various justices 45 00:02:40,520 --> 00:02:44,040 Speaker 1: are trying to come up with what's called a limiting principle. 46 00:02:44,200 --> 00:02:48,160 Speaker 1: If we rule that there are some circumstances where discharges 47 00:02:48,160 --> 00:02:51,480 Speaker 1: through groundwater are covered, what are the circumstances where it's 48 00:02:51,560 --> 00:02:56,200 Speaker 1: not covered? And particularly Justice Kavanaugh was hammering that point, 49 00:02:56,240 --> 00:02:59,280 Speaker 1: saying people need to know whether they need a permit 50 00:02:59,400 --> 00:03:01,720 Speaker 1: or not. And there was a lot of discussion about 51 00:03:01,760 --> 00:03:05,320 Speaker 1: people with septic systems and homeowners and so forth, and 52 00:03:05,360 --> 00:03:07,360 Speaker 1: how do they know whether they need a permit or not? 53 00:03:07,480 --> 00:03:09,800 Speaker 1: So that seems to be where the court is focused. 54 00:03:09,840 --> 00:03:12,280 Speaker 1: Is there a way to rule that some things are 55 00:03:12,280 --> 00:03:15,040 Speaker 1: subject to regulation but many things are not. Does this 56 00:03:15,080 --> 00:03:17,040 Speaker 1: mean that we could end up with some kind of 57 00:03:17,040 --> 00:03:22,040 Speaker 1: a split decision that doesn't provide guidance for the future. Well, 58 00:03:22,080 --> 00:03:25,760 Speaker 1: we saw that before with the infamous Rapanos case. So 59 00:03:25,840 --> 00:03:29,239 Speaker 1: let's hope we don't get another muddled and muddy decision 60 00:03:29,360 --> 00:03:31,280 Speaker 1: like that. No, I think the Court is going to 61 00:03:31,400 --> 00:03:34,000 Speaker 1: be careful to come up with some kind of a 62 00:03:34,120 --> 00:03:37,120 Speaker 1: rule that's clear enough, a bright line that's clear enough 63 00:03:37,280 --> 00:03:39,960 Speaker 1: to guide both E p A and people that might 64 00:03:40,000 --> 00:03:42,600 Speaker 1: have to get a permit. What exactly that's going to be, 65 00:03:42,680 --> 00:03:45,520 Speaker 1: I'm not sure. The best test that I think the 66 00:03:45,560 --> 00:03:47,320 Speaker 1: Court can come up with is what we call a 67 00:03:47,400 --> 00:03:51,160 Speaker 1: proximate cause, a concept that's familiar in tort law when 68 00:03:51,160 --> 00:03:55,680 Speaker 1: you assign responsibility to someone for the pollution they're causing. 69 00:03:56,240 --> 00:03:58,320 Speaker 1: I don't think I can say that a majority of 70 00:03:58,320 --> 00:04:03,040 Speaker 1: the justices have accept a simple approximate cause test, but 71 00:04:03,080 --> 00:04:07,560 Speaker 1: I'm thinking something along those lines might emerge. Justice Brier 72 00:04:07,720 --> 00:04:11,480 Speaker 1: suggests that a functional equivalent test, that if you could 73 00:04:11,480 --> 00:04:16,360 Speaker 1: say that the discharge through groundwater was functionally equivalent to 74 00:04:16,480 --> 00:04:20,960 Speaker 1: a direct discharge in the navigable waters, that would be subject. 75 00:04:21,120 --> 00:04:23,760 Speaker 1: But Chief Justice Roberts really pooh pooed that and said, 76 00:04:23,760 --> 00:04:27,240 Speaker 1: I don't think functional equivalent is any clearer than fairly traceable, 77 00:04:27,320 --> 00:04:30,880 Speaker 1: so that's probably not gonna work. Roberts doesn't also seem 78 00:04:31,040 --> 00:04:35,839 Speaker 1: totally comfortable with just a simple proximate cause test. Neither 79 00:04:35,880 --> 00:04:39,000 Speaker 1: does Justice Alito or Kavanaugh or Gorsuch. They all expressed 80 00:04:39,040 --> 00:04:42,000 Speaker 1: doubt about that. So that's where we are. They're gonna 81 00:04:42,040 --> 00:04:44,320 Speaker 1: have to if they come out with a decision that 82 00:04:44,480 --> 00:04:48,600 Speaker 1: says some discharges through groundwater are covered, they're going to 83 00:04:48,680 --> 00:04:50,800 Speaker 1: have to come up with a tight sort of time 84 00:04:50,839 --> 00:04:54,680 Speaker 1: and space rule for how close the discharge has to 85 00:04:54,720 --> 00:04:57,840 Speaker 1: be to navigable waters and how fast the discharge gets 86 00:04:57,880 --> 00:05:01,360 Speaker 1: to navigable waters. Or the court could simply go completely 87 00:05:01,400 --> 00:05:03,719 Speaker 1: the other way and agree with the government that no, 88 00:05:04,040 --> 00:05:08,440 Speaker 1: no discharges through groundwater are ever covered. But the problem 89 00:05:08,480 --> 00:05:11,120 Speaker 1: with that ruling is it flies in the face of 90 00:05:11,120 --> 00:05:15,359 Speaker 1: the language the text of the statute, which says any 91 00:05:15,400 --> 00:05:21,200 Speaker 1: discharge from a point source to navigable waters is regulated. 92 00:05:21,279 --> 00:05:23,719 Speaker 1: So they're going to have to struggle with the text 93 00:05:23,800 --> 00:05:26,520 Speaker 1: of the statute which seems to say some things have 94 00:05:26,680 --> 00:05:29,440 Speaker 1: to be covered, and the problem of how to limit 95 00:05:29,560 --> 00:05:35,440 Speaker 1: that coverage. Could this decision affect more than water, No, 96 00:05:35,839 --> 00:05:38,640 Speaker 1: this is really unique to the Clean Water Act. It 97 00:05:38,680 --> 00:05:41,920 Speaker 1: doesn't really involve the Air Act or any other statute, 98 00:05:42,440 --> 00:05:47,880 Speaker 1: and it's specific to the wastewater discharge permit program. We 99 00:05:47,920 --> 00:05:51,760 Speaker 1: also have a program called the nonpoint source Control and 100 00:05:51,800 --> 00:05:54,919 Speaker 1: there was lots of discussion in the argument about is 101 00:05:54,960 --> 00:05:58,240 Speaker 1: this better dealt with as a non point source problem, 102 00:05:58,240 --> 00:06:02,240 Speaker 1: which is typically runoff that isn't controlled in any way, 103 00:06:02,240 --> 00:06:04,919 Speaker 1: and that that's not exactly what's going on here either. 104 00:06:05,440 --> 00:06:07,640 Speaker 1: But under the Water Act, those are the only two 105 00:06:07,680 --> 00:06:12,719 Speaker 1: categories of regulation or program. One would be a formal 106 00:06:12,880 --> 00:06:15,840 Speaker 1: permit program, which is expensive. I mean, you know, if 107 00:06:15,839 --> 00:06:18,200 Speaker 1: you violate those permits, it can be up to fifty 108 00:06:18,640 --> 00:06:22,040 Speaker 1: dollars a day, and that that that bothers Justice Kavanaugh 109 00:06:22,080 --> 00:06:24,200 Speaker 1: and some of the others. And if but if you're 110 00:06:24,200 --> 00:06:25,520 Speaker 1: on the other hand, if you treat it as a 111 00:06:25,600 --> 00:06:28,640 Speaker 1: non point source problem, it really doesn't look like that. 112 00:06:28,760 --> 00:06:32,359 Speaker 1: It's not like just sheet flow off the landscape. It 113 00:06:32,440 --> 00:06:37,039 Speaker 1: definitely is being injected into the water. What seems a 114 00:06:37,040 --> 00:06:40,400 Speaker 1: little strange about this case is that the Maui County 115 00:06:40,440 --> 00:06:44,640 Speaker 1: Council approved a settlement with the environmental groups, but the 116 00:06:44,640 --> 00:06:48,560 Speaker 1: county's mayor won't approve it. So is there a settlement 117 00:06:48,640 --> 00:06:53,799 Speaker 1: that seems reasonable in the works or suggested? Yes. In fact, 118 00:06:54,080 --> 00:06:57,320 Speaker 1: there have been two settlements. The case was originally settled 119 00:06:57,320 --> 00:07:01,240 Speaker 1: even before the Ninth Circuit decision, but because of this 120 00:07:01,400 --> 00:07:05,440 Speaker 1: dispute between the mayor and the county council. They ended 121 00:07:05,520 --> 00:07:08,560 Speaker 1: up not honoring the settlement. The settlement was, if we 122 00:07:08,680 --> 00:07:12,280 Speaker 1: lose in the Ninth Circuit, we will agree to get 123 00:07:12,280 --> 00:07:15,800 Speaker 1: a permit and do some other things recycling of the wastewater, 124 00:07:15,840 --> 00:07:18,640 Speaker 1: which is a good actual solution to a lot of this. 125 00:07:19,160 --> 00:07:22,040 Speaker 1: But because the mayor said no, I don't under any 126 00:07:22,080 --> 00:07:25,640 Speaker 1: circumstance want to be subject to the permit program, they 127 00:07:25,720 --> 00:07:29,040 Speaker 1: pressed on with the Supreme Court appeal, and then more 128 00:07:29,120 --> 00:07:33,120 Speaker 1: recently there was a revised settlement that the council has approved. 129 00:07:33,120 --> 00:07:36,120 Speaker 1: In the mayor once again vetoed that this is a 130 00:07:36,200 --> 00:07:41,520 Speaker 1: really strange case, and it's possible that if a Hawaii 131 00:07:41,600 --> 00:07:46,000 Speaker 1: court rules that the county council has the authority to 132 00:07:46,200 --> 00:07:50,040 Speaker 1: settle the case, then the settlement could be entered in 133 00:07:50,080 --> 00:07:53,400 Speaker 1: the U. S. Supreme Court and the case would be dismissed. 134 00:07:53,800 --> 00:07:56,960 Speaker 1: And if that happened before the court issues a decision, 135 00:07:57,560 --> 00:07:59,720 Speaker 1: then there will be no decision in the case. So 136 00:07:59,800 --> 00:08:03,800 Speaker 1: this is a very odd circumstance. I would say, finally, 137 00:08:04,040 --> 00:08:06,960 Speaker 1: can you put this into context with what the Trump 138 00:08:06,960 --> 00:08:13,320 Speaker 1: administration is doing to restrict federal jurisdiction over wetlands and waterways. Right. 139 00:08:13,400 --> 00:08:16,440 Speaker 1: So the other big rule that's rolling back federal protection 140 00:08:16,520 --> 00:08:19,880 Speaker 1: is what we call wodas, the Waters of the US Rule, 141 00:08:19,960 --> 00:08:23,600 Speaker 1: which determines the geographic scope of the Clean Water Act. 142 00:08:24,200 --> 00:08:28,880 Speaker 1: And the Trump administration has repealed the Obama rule, which 143 00:08:28,920 --> 00:08:31,640 Speaker 1: set very clear lines on what was protected, and it 144 00:08:31,720 --> 00:08:37,119 Speaker 1: went quite a ways up the watershed, protecting wetlands and headwaters, 145 00:08:37,200 --> 00:08:39,480 Speaker 1: streams and so forth, and had a lot of science 146 00:08:39,920 --> 00:08:42,680 Speaker 1: behind There are reasons for why they were regulating it. 147 00:08:42,760 --> 00:08:45,960 Speaker 1: The Trump administration has said, note, we're not going to 148 00:08:46,040 --> 00:08:49,720 Speaker 1: regulate anywhere near the scope of waters that the Obama 149 00:08:49,760 --> 00:08:53,160 Speaker 1: administration wanted to regulate. But the Trump administration has not 150 00:08:53,320 --> 00:08:57,360 Speaker 1: yet issued its final rule replacing the Obama rule. So 151 00:08:57,400 --> 00:09:01,880 Speaker 1: we're once again in this period of certainty and actual 152 00:09:01,960 --> 00:09:04,880 Speaker 1: chaos and trying to figure out what are the rules 153 00:09:05,080 --> 00:09:09,079 Speaker 1: for what waters are protected by the federal government. Thanks Pat, 154 00:09:09,440 --> 00:09:14,880 Speaker 1: that's Pat Parento, professor at Vermont Law School. Thanks for 155 00:09:14,960 --> 00:09:18,200 Speaker 1: listening to the Bloomberg Law Podcast. You can subscribe and 156 00:09:18,280 --> 00:09:21,520 Speaker 1: listen to the show on Apple Podcasts, SoundCloud, and on 157 00:09:21,600 --> 00:09:26,320 Speaker 1: Bloomberg dot com slash podcast. I'm June Brosso. This is 158 00:09:26,360 --> 00:09:26,960 Speaker 1: Bloomberg