The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Next fall, the Supreme Court is scheduled to hear oral argument in County of Maui v. Hawaii Wildlife Fund, a major environmental case concerning the scope of the Clean Water Act. Depending on how the Court handles the case, Maui could easily be one of the most significant environmental cases of the past decade, but only if it does not settle before argument.
The issue in Maui is "whether the Clean Water Act requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater." Put in lay terms, the question is whether the County of Maui was required to get a CWA permit for injecting pollutants into groundwater if some of those pollutants could eventually reach "waters of the United States." According to the Hawaii Wildlife Fund, when groundwater acts as a conduit of pollutants that were discharged by a point source, a permit should be required. According to the County of Maui, no CWA permit should be required because the CWA does not regulate groundwater and does not require a permit for nonpoint source pollution.
The U.S. Court of Appeals for the Ninth Circuit accepted the Hawaii Wildlife Fund's argument, thereby requiring the County of Maui to obtain CWA permits for the continued operation of underground injection control wells at its wasterwater treatment plants. Other courts to consider this question, such as the U.S. Court of Appeals for the Sixth Circuit, have disagreed. The resulting circuit split made this case an obvious candidate for certiorari, and the outcome could have far-reaching consequences. In Hawaii alone there are over 6,000 UIC wells and 21,000 septic systems that could be subject to CWA permit requirements if the Ninth Circuit's position is upheld.
While the County of Maui would prefer not to have to obtain permits for its wastewater treatment plant UIC wells, some local political leaders are also wary of pushing an aggressive anti-regulatory argument in the Supreme Court. According to local press reports, Maui is considering whether to settle the case before it is heard by the Court.
If Maui is settled, it would end the case and prevent the Court from issuing an opinion in the case. This would delay, though not deny, the Supreme Court's ability to resolve the underlying question. The existence of other cases addressing this question means that, in all likelihood, it would only be a matter of time before the groundwater-conduit question returns to the Court. Settling the case would, however, eliminate an important, high-profile case from what is shaping up to be a quite significant Supreme Court term.
(Thanks to Jesse Richardson for the pointer.)
UPDATE: Ellen GIlmer of E&E News has more. It appears Earthjustice was involved in pushing a settlement offer. This makes some sense as a national litigation-oriented environmental group might be more attuned to the risks a case like this presents than a more local group, and were I representing such groups, I would not be particularly eager to see this issue go up to the Supreme Court.
SECOND UPDATE: According to this 2018 Earthjustice press release, at one point the County had agreed to make infrastructure upgrades to settle the suit, but then opted to file the petition for certiorari.