The State of Hawaii brings to mind images of stunning natural beauty, pristine beaches, and its eponymous colorful shirts. Yesterday’s Supreme Court decision, however, addressed an odorous Hawaiian reality: the multi-million-gallon daily discharge of chemically treated sewage sludge into ground water and the Pacific Ocean.

The question presented by County of Maui, Hawaii v. Hawaii Wildlife Fund, et al. is straight-forward: “The Clean Water Act forbids “any addition” of any pollutant from “any point source” to “navigable waters” without an appropriate permit from the Environmental Protection Agency (EPA).” In this case, “Petitioner County of Maui’s wastewater reclamation facility collects sewage from the surrounding area, partially treats it, and each day pumps around 4 million gallons of treated water into the ground through four wells. This effluent then travels about a half mile, through groundwater, to the Pacific Ocean. Respondent environmental groups brought a citizens’ Clean Water Act suit, alleging that Maui was “discharg[ing]” a “pollutant” to “navigable waters” without the required permit. The District Court found that the discharge from Maui’s wells into the nearby groundwater was “functionally one into navigable water,” 24 F. Supp. 3d 980, 998, and granted summary judgment to the environmental groups. The Ninth Circuit affirmed, stating that a permit is required when “pollutants are fairly traceable from the point source to a navigable water.” 886 F. 3d 737, 749.” 

Maui and the US Solicitor General (the Administration changed its position after the 2016 elections) argued that only direct discharge into “navigable waters” (river, ocean, etc.) requires EPA permit, whereas here the discharge passes through groundwater before reaching the Pacific Ocean. In fact, the current EPA’s relevant Interpretive Statement states that “all releases of pollutants to groundwater” don’t require permit “even where pollutants are conveyed to jurisdictional surface waters via groundwater.”

The EPA’s position, simply stated, is that only direct discharge of pollutants into a river or an ocean requires a permit. If there’s any separation—a pipe, a field, a drainage channel, a bird’s beak—polluters are in the clear. As to groundwater? Go ahead, pollute at will, no problem.

Reading this case, one might mistakenly assume that the acronym EPA stands for the Environmental Pollution Agency.

Justice Breyer, writing for the majority, explained at length why Congress surely didn’t intend to create a meaningless permit process that could be circumvented easily by discharging harmful pollutants “indirectly” into navigable waters or directly into groundwater. Rather, Congress intended to protect our water from anything amounting to “the functional equivalent of a direct discharge.”

What does “functional equivalent” mean?

According to Justice Breyer, “Many factors may be relevant to determining whether a particular discharge is the functional equivalent of one directly into navigable waters. Time and distance will be the most important factors in most cases, but other relevant factors may include, e.g., the nature of the material through which the pollutant travels and the extent to which the pollutant is diluted or chemically changed as it travels. Courts will provide additional guidance through decisions in individual cases.”

A dissenting opinion by Justice Thomas, joined by Justice Gorsuch, mocks this “functional equivalent” standard as vague and impractical, reminding the Court that “we are not a super-legislature (or super-EPA) tasked with making good policy—assuming that is even what the Court accomplishes today. “Our job is to follow the text even if doing so will supposedly undercut a basic objective of the statute.” (Quoting Baker Botts L. L. P. v. ASARCO (2015)

In summary, County of Maui, Hawaii v. Hawaii Wildlife Fund, et al. seems to deliver a compromise decision by a conflicted, stitched-up majority, creating yet another amorphous standard to which both environmentalists and polluters may pin their future arguments. I expect lower-court judges, while muddling through the next wave of water-pollution cases, will bemoan this decision for creating the “functional equivalent” of a legal standard, rather than a clear one. Time will tell.

Avraham Azrieli writes novels and screenplays. www.AzrieliBooks.com  4/24/2020