Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight an analysis into the most
Speaker 1: important legal news of the day. You can find more
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Speaker 1: environmental case of the term, involving pollution of the Pacific
Speaker 1: Ocean off the coast of Maui. During oural arguments, the
Speaker 1: justices seemed conflicted over the reach of the Clean Water
Speaker 1: Act to cover treated waste water that environmentalists say is
Speaker 1: damaging a coral reef there. Joining me is Pat Parento,
Speaker 1: a professor of environmental law at the University of Vermont
Speaker 1: Law School. So Pat breakdown the issue for us. So,
Speaker 1: what's happening is the County of Maui in Hawaii is
Speaker 1: discharging their sewage waste through an injection well that's within
Speaker 1: about a half a mile of the ocean, and so
Speaker 1: the wastewater goes down into the ground, through the groundwater,
Speaker 1: and into the ocean where it's been causing pretty significant
Speaker 1: harm to the reef system there. It also has bacteria,
Speaker 1: of course in it, which is a potential threat to
Speaker 1: the swimmers and surfers that use the beach, and they
Speaker 1: don't have a permit under the Clean Water Act for
Speaker 1: that kind of discharge, and they argue that because it's
Speaker 1: going through the groundwater, they're not subject to the permit
Speaker 1: requirements of the Clean Water Act. The Ninth Circuit, on
Speaker 1: the other hand, held they were, and that they needed
Speaker 1: to get a permit and comply with those terms, which
Speaker 1: would protect the ocean waters. And that's the issue that's
Speaker 1: up before the Supreme Court. This is the first time
Speaker 1: the Supreme Court has been asked to rule on to
Speaker 1: what extent are discharges through groundwater regulated under the Clean
Speaker 1: Water Act. Pat it seemed from looking at a transcript
Speaker 1: of the arguments that key justices weren't comfortable with either
Speaker 1: side's argument. I think that's right. The County of Maui,
Speaker 1: so ported by the Solicitor General the Trump administration, is
Speaker 1: saying that only discharges that are direct from a point
Speaker 1: source like a pipe, into navigable waters are regulated. And
Speaker 1: when pressed, they even said, even if it only goes
Speaker 1: two feet through groundwater before it reaches navigable waters, it's
Speaker 1: not regulated. And I think it's fair to say a
Speaker 1: majority of the justices are not buying that argument. On
Speaker 1: the other hand, I think a majority of the justices
Speaker 1: are not buying the Ninth Circuit's ruling that anything that
Speaker 1: is quote fairly traceable from the point source to the
Speaker 1: navigable water is covered. So it seems like various justices
Speaker 1: are trying to come up with what's called a limiting principle.
Speaker 1: If we rule that there are some circumstances where discharges
Speaker 1: through groundwater are covered, what are the circumstances where it's
Speaker 1: not covered? And particularly Justice Kavanaugh was hammering that point,
Speaker 1: saying people need to know whether they need a permit
Speaker 1: or not. And there was a lot of discussion about
Speaker 1: people with septic systems and homeowners and so forth, and
Speaker 1: how do they know whether they need a permit or not?
Speaker 1: So that seems to be where the court is focused.
Speaker 1: Is there a way to rule that some things are
Speaker 1: subject to regulation but many things are not. Does this
Speaker 1: mean that we could end up with some kind of
Speaker 1: a split decision that doesn't provide guidance for the future. Well,
Speaker 1: we saw that before with the infamous Rapanos case. So
Speaker 1: let's hope we don't get another muddled and muddy decision
Speaker 1: like that. No, I think the Court is going to
Speaker 1: be careful to come up with some kind of a
Speaker 1: rule that's clear enough, a bright line that's clear enough
Speaker 1: to guide both E p A and people that might
Speaker 1: have to get a permit. What exactly that's going to be,
Speaker 1: I'm not sure. The best test that I think the
Speaker 1: Court can come up with is what we call a
Speaker 1: proximate cause, a concept that's familiar in tort law when
Speaker 1: you assign responsibility to someone for the pollution they're causing.
Speaker 1: I don't think I can say that a majority of
Speaker 1: the justices have accept a simple approximate cause test, but
Speaker 1: I'm thinking something along those lines might emerge. Justice Brier
Speaker 1: suggests that a functional equivalent test, that if you could
Speaker 1: say that the discharge through groundwater was functionally equivalent to
Speaker 1: a direct discharge in the navigable waters, that would be subject.
Speaker 1: But Chief Justice Roberts really pooh pooed that and said,
Speaker 1: I don't think functional equivalent is any clearer than fairly traceable,
Speaker 1: so that's probably not gonna work. Roberts doesn't also seem
Speaker 1: totally comfortable with just a simple proximate cause test. Neither
Speaker 1: does Justice Alito or Kavanaugh or Gorsuch. They all expressed
Speaker 1: doubt about that. So that's where we are. They're gonna
Speaker 1: have to if they come out with a decision that
Speaker 1: says some discharges through groundwater are covered, they're going to
Speaker 1: have to come up with a tight sort of time
Speaker 1: and space rule for how close the discharge has to
Speaker 1: be to navigable waters and how fast the discharge gets
Speaker 1: to navigable waters. Or the court could simply go completely
Speaker 1: the other way and agree with the government that no,
Speaker 1: no discharges through groundwater are ever covered. But the problem
Speaker 1: with that ruling is it flies in the face of
Speaker 1: the language the text of the statute, which says any
Speaker 1: discharge from a point source to navigable waters is regulated.
Speaker 1: So they're going to have to struggle with the text
Speaker 1: of the statute which seems to say some things have
Speaker 1: to be covered, and the problem of how to limit
Speaker 1: that coverage. Could this decision affect more than water, No,
Speaker 1: this is really unique to the Clean Water Act. It
Speaker 1: doesn't really involve the Air Act or any other statute,
Speaker 1: and it's specific to the wastewater discharge permit program. We
Speaker 1: also have a program called the nonpoint source Control and
Speaker 1: there was lots of discussion in the argument about is
Speaker 1: this better dealt with as a non point source problem,
Speaker 1: which is typically runoff that isn't controlled in any way,
Speaker 1: and that that's not exactly what's going on here either.
Speaker 1: But under the Water Act, those are the only two
Speaker 1: categories of regulation or program. One would be a formal
Speaker 1: permit program, which is expensive. I mean, you know, if
Speaker 1: you violate those permits, it can be up to fifty
Speaker 1: dollars a day, and that that that bothers Justice Kavanaugh
Speaker 1: and some of the others. And if but if you're
Speaker 1: on the other hand, if you treat it as a
Speaker 1: non point source problem, it really doesn't look like that.
Speaker 1: It's not like just sheet flow off the landscape. It
Speaker 1: definitely is being injected into the water. What seems a
Speaker 1: little strange about this case is that the Maui County
Speaker 1: Council approved a settlement with the environmental groups, but the
Speaker 1: county's mayor won't approve it. So is there a settlement
Speaker 1: that seems reasonable in the works or suggested? Yes. In fact,
Speaker 1: there have been two settlements. The case was originally settled
Speaker 1: even before the Ninth Circuit decision, but because of this
Speaker 1: dispute between the mayor and the county council. They ended
Speaker 1: up not honoring the settlement. The settlement was, if we
Speaker 1: lose in the Ninth Circuit, we will agree to get
Speaker 1: a permit and do some other things recycling of the wastewater,
Speaker 1: which is a good actual solution to a lot of this.
Speaker 1: But because the mayor said no, I don't under any
Speaker 1: circumstance want to be subject to the permit program, they
Speaker 1: pressed on with the Supreme Court appeal, and then more
Speaker 1: recently there was a revised settlement that the council has approved.
Speaker 1: In the mayor once again vetoed that this is a
Speaker 1: really strange case, and it's possible that if a Hawaii
Speaker 1: court rules that the county council has the authority to
Speaker 1: settle the case, then the settlement could be entered in
Speaker 1: the U. S. Supreme Court and the case would be dismissed.
Speaker 1: And if that happened before the court issues a decision,
Speaker 1: then there will be no decision in the case. So
Speaker 1: this is a very odd circumstance. I would say, finally,
Speaker 1: can you put this into context with what the Trump
Speaker 1: administration is doing to restrict federal jurisdiction over wetlands and waterways. Right.
Speaker 1: So the other big rule that's rolling back federal protection
Speaker 1: is what we call wodas, the Waters of the US Rule,
Speaker 1: which determines the geographic scope of the Clean Water Act.
Speaker 1: And the Trump administration has repealed the Obama rule, which
Speaker 1: set very clear lines on what was protected, and it
Speaker 1: went quite a ways up the watershed, protecting wetlands and headwaters,
Speaker 1: streams and so forth, and had a lot of science
Speaker 1: behind There are reasons for why they were regulating it.
Speaker 1: The Trump administration has said, note, we're not going to
Speaker 1: regulate anywhere near the scope of waters that the Obama
Speaker 1: administration wanted to regulate. But the Trump administration has not
Speaker 1: yet issued its final rule replacing the Obama rule. So
Speaker 1: we're once again in this period of certainty and actual
Speaker 1: chaos and trying to figure out what are the rules
Speaker 1: for what waters are protected by the federal government. Thanks Pat,
Speaker 1: that's Pat Parento, professor at Vermont Law School. Thanks for
Speaker 1: listening to the Bloomberg Law Podcast. You can subscribe and
Speaker 1: listen to the show on Apple Podcasts, SoundCloud, and on
Speaker 1: Bloomberg dot com slash podcast. I'm June Brosso. This is
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