Supreme Court

Might Maui v. Hawaii Wildlife Fund Disappear?

A major environmental case might settle before the Supreme Court has the chance to review it.

|The Volokh Conspiracy |

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.

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  1. Given that Hawaii is an island state, consisting of 8 main islands and hundreds of smaller ones, all separated from the nearest U.S. State, California, by over 2,000 miles of open ocean, doesn’t the CWA’s jurisdictional nexus – i.e., the regulation of interstate commerce – just fall apart when dealing with Hawaiian water pollution? Just what “waters of the United States” is any groundwater pollution going to migrate to, the Pacific Ocean? If ever there was a case for just letting a state take control of its own pollution problems without interference from Washington, Hawaii seems the place to start.

    1. It could seep into groundwater, and thence into pineapples. This would have devastating effects on competition with Minnesotan pineapple production, totally disrupting the supply chain for the exotic pizza market.

      1. People who eat pineapple on pizza are already eating crap. A little more couldn’t possibly hurt.

        1. Nothing can beat the combination of pineapple and anchovies! The perfect sweet/salty pizza!

          1. Since this was a story about Hawaii, I guess we can include Hawaiian pizza (ham, onions, pineapple).

          2. As so often, Brett, I think you’re nuts.

            Much against my inclinations, I have to agree with DJDD here.

          3. One of the very best pizzas I ever had was anchovies and huitlacoche, wood fired oven, thin and crispy crust. In Mexico, of course.

            1. Anchovies are in a lot of foods people like. Usually in stealth mode, though. They’re widely seen as a handy way to add some salt and complexity to the flavor of something. I use them a lot in my cooking.

              A little anchovy can do remarkable things for a pot of spaghetti sauce, or hamburger you’re going to grill.

              But you have to work your way up to them as a pizza topping.

              1. I am a fan of anchovies.

                The habit of removing them from Caesar’s salads is a portent of the collapse of civilization.

                I blame Trump.

                1. Much as I hate to admit it, bernard11 is right. Do not trust people who remove anchovies from a Caesar Salad. Also, anchovies add a wonderful flavor to Spaghetti Putanesca, and a host of other dishes. BUT there are good anchovies and bad anchovies. People who say they hate anchovies have never had the really good ones.

      2. Pineapples are grown in Minnesota. But Minnesotans are wise enough to never put pineapples on pizza.

  2. “Might Maui v. Hawaii Wildlife Fund Disappear?”

    Penn and Teller’s greatest trick!

  3. 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.

    How refreshing. Normally, the strategy in these situations is to sandbag the legal arguments, thereby getting favorable precedent for a broader agenda.

    Environmental law, in particular, is infamous for false adversity.

  4. A major environmental case might settle before the Supreme Court has the change to review it.

    A typo. Obviously, it should be “chance” and not ‘change.’ (Why is there no easy way on this website to PM an author directly to give heads-up about things like this???)

    1. Thanks. Fixed

  5. Just another example of why, once a case is filed, it should be forced to a judicial conclusion, with full public disclosure of the verdict, and the reasoning behind that verdict.
    #nosettlement
    #nosecrecy

    1. The eternal prayer of every good lawyer – let there be no precedents but Jarndyce v Jarndyce.

  6. Why would anyone think it ought to be reasonable to settle this question except on a case-by-case basis. If someone proposes to use an extremely deep injection well, into an appropriate geological formation, with no reasonable prospect that the waste will ever be seen again, then okay. But if the ground receiving the pollutants is more like an extension of the pipe being used to dump them, and leads straight to regulated waters, no way.

    1. Because it’s going to the Supreme Court, with 5 “conservative” Justices. Then precedent could be set, regarding this.

      By settling now, and waiting until a “better” Supreme Court was around, better precedent could be set towards expanding the scope of the clean water act.

      1. Wait a minute. Isn’t the scope of the clean water act the question under consideration? When you say “expand” you seem to suggest the scope is settled, and the suit seeks to unsettle it, and make it larger. That may be your point of view, but I don’t see how it can be the premise of the case.

        1. 1. “Isn’t the scope of the clean water act under consideration?”
          -Yes
          2. “When you say expand it, you seem suggest the scope is settled and the suit seeks to unsettle it and make it larger”

          It’s not “settled” but there are conventional ranges for what it applies to. The wildlife fund would like to expand that range. The county might want to, but probably (given the current government) doesn’t want to decrease the range. That generally is the premise of the case.

          Now, as Maui pointed out, just about every septic tank in Hawaii ultimately discharges in the Pacific via groundwater. Indeed, just about every septic tank in America ultimately discharges into interstate waters. According to a broad interpretation, every septic tank in America would require a CWA permit from the Feds. That would effectively expand the range of the CWA.

          1. Help me out some more, please. I thought septic systems were intended as water treatment systems, not as point pollution sources. Aren’t those distinguishable from a non-treatment point source discharging into the ground?

            1. “I thought septic systems were intended as water treatment systems, not as point pollution sources. Aren’t those distinguishable from a non-treatment point source discharging into the ground?”

              Sure, but the specific permit being challenged in the Hawaii case before the 9th Circuit is about a permit for a waste water treatment plant, so I don’t see why that distinction would be relevant.

              As I understand it, most UIC wells at waste water treatment plants are for injecting treated waste water back into the aquifer to maintain capacity and prevent land subsidence that can occur when a ground water aquifer is drawn down too far.

            2. Matthew’s response covers this. In short, septic tanks are point pollution sources, releasing partially treated (but certainly not “clean”) water, not unlike the Maui waste water treatment plant currently under suit.

              1. Thanks guys. Given that new information, then it looks like a relevant distinction might be between biological wastes, which will tend toward self-amelioration in the long run, and chemical wastes which won’t. I suggest a case involving biological wastes might not be a great fit for a court ruling that could end up releasing a flood of chemical wastes into regulated waters.

                1. Biological wastes may “self ameliorate” in the long run, but they can still do considerable environmental and public health damage along the way.

                2. Some other things to consider.

                  Separate and apart from the CWA WOTUS rule, the EPA already regulates and requires permits for UIC wells.

                  From what I’ve read in many cases, though not all, fully treated water released from the most up to date treatment plants meets or exceeds EPA drinking water standards.

                  While surface discharging treatment plants in some areas have been known to discharge untreated waste water under heavier than normal flows due to rainfall, I’m somewhat skeptical that a UIC permit would allow injection of un or partially treated waste water, since the whole point of a UIC well at a waste water treatment plant is to put the treated water back into the same aquifer as the local fresh water is being drawn from.

                  Depending on the nature of the sediment/rock at the level of the aquifer, it may or may not act as a filter for biological and/or chemical contaminants.

  7. […] after all,” because the environmental groups have offered to settle the case. At Reason’s Volokh Conspiracy blog, Jonathan Adler writes that “[t]he existence of other cases addressing this question means […]

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