WEBVTT - Justices Conflicted in Landmark Environmental Case

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you insight an analysis into the most

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<v Speaker 1>important legal news of the day. You can find more

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<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud

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<v Speaker 1>and on Bloomberg dot com slash podcasts. It's the biggest

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<v Speaker 1>environmental case of the term, involving pollution of the Pacific

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<v Speaker 1>Ocean off the coast of Maui. During oural arguments, the

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<v Speaker 1>justices seemed conflicted over the reach of the Clean Water

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<v Speaker 1>Act to cover treated waste water that environmentalists say is

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<v Speaker 1>damaging a coral reef there. Joining me is Pat Parento,

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<v Speaker 1>a professor of environmental law at the University of Vermont

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<v Speaker 1>Law School. So Pat breakdown the issue for us. So,

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<v Speaker 1>what's happening is the County of Maui in Hawaii is

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<v Speaker 1>discharging their sewage waste through an injection well that's within

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<v Speaker 1>about a half a mile of the ocean, and so

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<v Speaker 1>the wastewater goes down into the ground, through the groundwater,

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<v Speaker 1>and into the ocean where it's been causing pretty significant

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<v Speaker 1>harm to the reef system there. It also has bacteria,

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<v Speaker 1>of course in it, which is a potential threat to

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<v Speaker 1>the swimmers and surfers that use the beach, and they

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<v Speaker 1>don't have a permit under the Clean Water Act for

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<v Speaker 1>that kind of discharge, and they argue that because it's

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<v Speaker 1>going through the groundwater, they're not subject to the permit

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<v Speaker 1>requirements of the Clean Water Act. The Ninth Circuit, on

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<v Speaker 1>the other hand, held they were, and that they needed

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<v Speaker 1>to get a permit and comply with those terms, which

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<v Speaker 1>would protect the ocean waters. And that's the issue that's

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<v Speaker 1>up before the Supreme Court. This is the first time

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<v Speaker 1>the Supreme Court has been asked to rule on to

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<v Speaker 1>what extent are discharges through groundwater regulated under the Clean

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<v Speaker 1>Water Act. Pat it seemed from looking at a transcript

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<v Speaker 1>of the arguments that key justices weren't comfortable with either

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<v Speaker 1>side's argument. I think that's right. The County of Maui,

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<v Speaker 1>so ported by the Solicitor General the Trump administration, is

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<v Speaker 1>saying that only discharges that are direct from a point

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<v Speaker 1>source like a pipe, into navigable waters are regulated. And

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<v Speaker 1>when pressed, they even said, even if it only goes

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<v Speaker 1>two feet through groundwater before it reaches navigable waters, it's

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<v Speaker 1>not regulated. And I think it's fair to say a

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<v Speaker 1>majority of the justices are not buying that argument. On

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<v Speaker 1>the other hand, I think a majority of the justices

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<v Speaker 1>are not buying the Ninth Circuit's ruling that anything that

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<v Speaker 1>is quote fairly traceable from the point source to the

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<v Speaker 1>navigable water is covered. So it seems like various justices

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<v Speaker 1>are trying to come up with what's called a limiting principle.

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<v Speaker 1>If we rule that there are some circumstances where discharges

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<v Speaker 1>through groundwater are covered, what are the circumstances where it's

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<v Speaker 1>not covered? And particularly Justice Kavanaugh was hammering that point,

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<v Speaker 1>saying people need to know whether they need a permit

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<v Speaker 1>or not. And there was a lot of discussion about

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<v Speaker 1>people with septic systems and homeowners and so forth, and

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<v Speaker 1>how do they know whether they need a permit or not?

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<v Speaker 1>So that seems to be where the court is focused.

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<v Speaker 1>Is there a way to rule that some things are

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<v Speaker 1>subject to regulation but many things are not. Does this

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<v Speaker 1>mean that we could end up with some kind of

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<v Speaker 1>a split decision that doesn't provide guidance for the future. Well,

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<v Speaker 1>we saw that before with the infamous Rapanos case. So

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<v Speaker 1>let's hope we don't get another muddled and muddy decision

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<v Speaker 1>like that. No, I think the Court is going to

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<v Speaker 1>be careful to come up with some kind of a

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<v Speaker 1>rule that's clear enough, a bright line that's clear enough

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<v Speaker 1>to guide both E p A and people that might

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<v Speaker 1>have to get a permit. What exactly that's going to be,

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<v Speaker 1>I'm not sure. The best test that I think the

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<v Speaker 1>Court can come up with is what we call a

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<v Speaker 1>proximate cause, a concept that's familiar in tort law when

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<v Speaker 1>you assign responsibility to someone for the pollution they're causing.

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<v Speaker 1>I don't think I can say that a majority of

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<v Speaker 1>the justices have accept a simple approximate cause test, but

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<v Speaker 1>I'm thinking something along those lines might emerge. Justice Brier

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<v Speaker 1>suggests that a functional equivalent test, that if you could

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<v Speaker 1>say that the discharge through groundwater was functionally equivalent to

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<v Speaker 1>a direct discharge in the navigable waters, that would be subject.

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<v Speaker 1>But Chief Justice Roberts really pooh pooed that and said,

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<v Speaker 1>I don't think functional equivalent is any clearer than fairly traceable,

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<v Speaker 1>so that's probably not gonna work. Roberts doesn't also seem

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<v Speaker 1>totally comfortable with just a simple proximate cause test. Neither

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<v Speaker 1>does Justice Alito or Kavanaugh or Gorsuch. They all expressed

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<v Speaker 1>doubt about that. So that's where we are. They're gonna

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<v Speaker 1>have to if they come out with a decision that

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<v Speaker 1>says some discharges through groundwater are covered, they're going to

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<v Speaker 1>have to come up with a tight sort of time

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<v Speaker 1>and space rule for how close the discharge has to

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<v Speaker 1>be to navigable waters and how fast the discharge gets

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<v Speaker 1>to navigable waters. Or the court could simply go completely

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<v Speaker 1>the other way and agree with the government that no,

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<v Speaker 1>no discharges through groundwater are ever covered. But the problem

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<v Speaker 1>with that ruling is it flies in the face of

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<v Speaker 1>the language the text of the statute, which says any

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<v Speaker 1>discharge from a point source to navigable waters is regulated.

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<v Speaker 1>So they're going to have to struggle with the text

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<v Speaker 1>of the statute which seems to say some things have

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<v Speaker 1>to be covered, and the problem of how to limit

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<v Speaker 1>that coverage. Could this decision affect more than water, No,

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<v Speaker 1>this is really unique to the Clean Water Act. It

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<v Speaker 1>doesn't really involve the Air Act or any other statute,

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<v Speaker 1>and it's specific to the wastewater discharge permit program. We

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<v Speaker 1>also have a program called the nonpoint source Control and

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<v Speaker 1>there was lots of discussion in the argument about is

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<v Speaker 1>this better dealt with as a non point source problem,

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<v Speaker 1>which is typically runoff that isn't controlled in any way,

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<v Speaker 1>and that that's not exactly what's going on here either.

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<v Speaker 1>But under the Water Act, those are the only two

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<v Speaker 1>categories of regulation or program. One would be a formal

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<v Speaker 1>permit program, which is expensive. I mean, you know, if

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<v Speaker 1>you violate those permits, it can be up to fifty

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<v Speaker 1>dollars a day, and that that that bothers Justice Kavanaugh

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<v Speaker 1>and some of the others. And if but if you're

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<v Speaker 1>on the other hand, if you treat it as a

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<v Speaker 1>non point source problem, it really doesn't look like that.

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<v Speaker 1>It's not like just sheet flow off the landscape. It

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<v Speaker 1>definitely is being injected into the water. What seems a

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<v Speaker 1>little strange about this case is that the Maui County

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<v Speaker 1>Council approved a settlement with the environmental groups, but the

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<v Speaker 1>county's mayor won't approve it. So is there a settlement

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<v Speaker 1>that seems reasonable in the works or suggested? Yes. In fact,

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<v Speaker 1>there have been two settlements. The case was originally settled

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<v Speaker 1>even before the Ninth Circuit decision, but because of this

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<v Speaker 1>dispute between the mayor and the county council. They ended

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<v Speaker 1>up not honoring the settlement. The settlement was, if we

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<v Speaker 1>lose in the Ninth Circuit, we will agree to get

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<v Speaker 1>a permit and do some other things recycling of the wastewater,

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<v Speaker 1>which is a good actual solution to a lot of this.

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<v Speaker 1>But because the mayor said no, I don't under any

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<v Speaker 1>circumstance want to be subject to the permit program, they

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<v Speaker 1>pressed on with the Supreme Court appeal, and then more

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<v Speaker 1>recently there was a revised settlement that the council has approved.

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<v Speaker 1>In the mayor once again vetoed that this is a

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<v Speaker 1>really strange case, and it's possible that if a Hawaii

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<v Speaker 1>court rules that the county council has the authority to

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<v Speaker 1>settle the case, then the settlement could be entered in

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<v Speaker 1>the U. S. Supreme Court and the case would be dismissed.

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<v Speaker 1>And if that happened before the court issues a decision,

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<v Speaker 1>then there will be no decision in the case. So

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<v Speaker 1>this is a very odd circumstance. I would say, finally,

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<v Speaker 1>can you put this into context with what the Trump

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<v Speaker 1>administration is doing to restrict federal jurisdiction over wetlands and waterways. Right.

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<v Speaker 1>So the other big rule that's rolling back federal protection

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<v Speaker 1>is what we call wodas, the Waters of the US Rule,

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<v Speaker 1>which determines the geographic scope of the Clean Water Act.

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<v Speaker 1>And the Trump administration has repealed the Obama rule, which

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<v Speaker 1>set very clear lines on what was protected, and it

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<v Speaker 1>went quite a ways up the watershed, protecting wetlands and headwaters,

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<v Speaker 1>streams and so forth, and had a lot of science

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<v Speaker 1>behind There are reasons for why they were regulating it.

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<v Speaker 1>The Trump administration has said, note, we're not going to

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<v Speaker 1>regulate anywhere near the scope of waters that the Obama

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<v Speaker 1>administration wanted to regulate. But the Trump administration has not

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<v Speaker 1>yet issued its final rule replacing the Obama rule. So

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<v Speaker 1>we're once again in this period of certainty and actual

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<v Speaker 1>chaos and trying to figure out what are the rules

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<v Speaker 1>for what waters are protected by the federal government. Thanks Pat,

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<v Speaker 1>that's Pat Parento, professor at Vermont Law School. Thanks for

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<v Speaker 1>listening to the Bloomberg Law Podcast. You can subscribe and

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<v Speaker 1>listen to the show on Apple Podcasts, SoundCloud, and on

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<v Speaker 1>Bloomberg dot com slash podcast. I'm June Brosso. This is

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<v Speaker 1>Bloomberg