Our Lawyer Just Got a Big Win for Clean Water at the Supreme Court
→ Earthjustice attorney David Henkin presented oral arguments at the Supreme Court in November 2019. Read highlights from the hearing.
→ Hawaiʻi Wildlife Fund v. County of Maui threatened to gravely weaken the federal law that protects the nation’s clean water. (See legal documents.)
→ The fate of rivers, lakes, and waterways in communities across the country hinged on the outcome of the case. Read analysis.
→ Read an explainer about this case.
Thirty minutes. David Henkin knew that was all he would get to make his case. But he felt ready.
On the morning of November 6, 2019, the Honolulu-based Earthjustice attorney swapped his customary Hawaiian shirt and khaki pants for a new, tailored suit and blue tie. He was headed to the U.S. Supreme Court, where he would argue a case whose implications stretch far beyond Hawai‘i’s sandy shores.
The case, formally named County of Maui v. Hawaiʻi Wildlife Fund, involves a wastewater treatment plant, its pollution discharges, and a partially dead coral reef in Maui. On April 23, 2020, the Supreme Court decided the case in Earthjustice’s favor, preserving strong protections for American waters from pollution. The court ruling shuts down industry efforts to create a major loophole in the Clean Water Act and establishes a test that lower courts can apply to prevent obvious efforts to skirt the law. The decision solidifies the Clean Water Act’s place as one of the nation’s most effective environmental laws.
Here’s the story of how it all went down.
Kahekili Beach Park is a popular Hawaiian destination with clear, turquoise waters full of brightly colored fish and tropical reefs. Thousands of swimsuit-clad tourists flock there each year.
But bubbling up beneath Kahekili’s famous reef is a dirty secret.
In 1982, the county of Maui’s wastewater treatment facility began discharging treated sewage into groundwater that eventually makes its way into Kahekili’s waters and the Pacific Ocean. Though treated, the wastewater contains dangerous levels of phosphorus and nitrogen, which promote excessive growth that smothers the reef, turning its vibrant colors to a dull, lifeless brown.
For years, Maui community groups complained to officials about the wastewater discharges and damage to the reef. Several studies backed up their concerns, including a 2011 Environmental Protection Agency (EPA) -funded study showing conclusively that the sewage flows end up in the ocean, and a 2017 study linking the sewage discharge to serious and ongoing harm to Kahekili’s reef.
Still, the county did nothing.
Though it knew the pollution reached the ocean, the county’s executive branch argued it’s not legally required to do anything about it because the pollution doesn’t flow directly into the ocean, but reaches the ocean indirectly through groundwater. The Clean Water Act, according to Maui County, only covers direct discharges.
“With the county’s reasoning, a polluter can avoid the law by taking a pipeline that discharges waste directly into the ocean and cutting it 10 feet short of the shoreline,” says Henkin, who sued the county on behalf of four Maui community groups in 2012. “At the end of the day, waste from the pipeline is still polluting the water. And, under the county’s twisted logic, the polluter would get off scot-free.”
After the rulings, Earthjustice and its clients tried to convince the county to fix the problem rather than pay millions of dollars in legal penalties for breaking the law. There even existed a straightforward solution: Use the excess treated wastewater for irrigation, a potential boon for dry West Maui.
Nearly 16,000 residents petitioned the local government to settle, and the county council even voted to do so. But the mayor’s office declined to sign off, and the two bodies were still at odds over who got the final call. In the meantime, the case proceeded to the Supreme Court.
In February, the high court agreed to review the county’s case . A who’s who of dangerous polluters, including fossil fuel and industrial agriculture groups, quickly signed on to back the county and its dangerous position. The U.S. EPA under President Trump also sided with the county, reversing 40 years of agency guidance, under both Republican and Democratic administrations, that the Clean Water Act regulates discharges of pollution that reach our nation’s waters through groundwater.
These groups wanted to create a loophole in the Clean Water Act, allowing dirty industries to pollute U.S. waters as long as the pollution isn’t directly discharged into a water source.
If allowed, it would be a free-for-all for dangerous polluters.
With nearly 30 years of litigation experience, Henkin is no stranger to high stakes cases. During his time at Earthjustice, he’s frequently and successfully sued both the U.S. Army and the Navy; secured a rare temporary restraining order against a logging company intent on chopping down the habitat of the endangered Hawaiian crow; and set critical legal precedent designating habitat for endangered and threatened plants found only on Hawaiʻi.
“David is a bulldog in the courtroom,” says Paul Achitoff, a former Earthjustice managing attorney. “He’s exceptional at oral arguments and one of our best courtroom advocates.”
Henkin’s colleagues often cite his passion for community-based lawyering as an immense asset in the courtroom.
But Henkin didn’t always know he wanted to be a public interest lawyer. In the late ‘80s, the summer before Henkin started law school, he got a job at a New York law firm that was gearing up for a big antitrust trial. The firm needed lots of college-educated people, no background or experience required.
It was a cushy atmosphere. Every morning, someone came by with a big cart piled with pastries and bagels, and every afternoon they brought lunch. If the employees stayed after 8 p.m., the firm would pay for their dinner and cab ride home.
“All the paralegals would stay until dinnertime. Then we'd go out on the town, and at 2 a.m. we'd grab a cab back to Brooklyn,” says Henkin. “It was a fun time.”
Eventually, the case settled favorably for the client and firm. As the champagne flowed, Henkin could see the associates envisioning their pathways to partnership opening up. He was happy for them. But he felt no emotional connection to the work.
“I had a profound indifference about what we were doing,” says Henkin. “I wanted to have something that I felt passionately engaged about.”
After graduating from law school, Henkin got the chance to work in Earthjustice’s Honolulu office, which focuses on cases that center people’s relationship to the environment.
Almost immediately, Henkin began working with local and Native Hawaiian communities struggling with environmental issues. One evening while he was still jetlagged, Henkin and Earthjustice’s Achitoff drove out to Oahu’s Windward side — the island’s east coast, famous for its jagged emerald mountains — to meet with residents who were working to restore streams diverted by sugar plantations.
“We were driving in the dark, winding into the jungle,” says Henkin. “It was very disorienting. But then I got to this wonderful community meeting with these great people who are trying to do great things.”
“Very quickly I was just super captivated by the work, by the clients, by the spirit in the office,” says Henkin. “I thought, ‘I could be a zealous advocate for this.’”
Of the 30 minutes a lawyer gets in front of the Supreme Court, the first two are uninterrupted. Then, a white light flashes and the justices let loose with a barrage of questions.
To prepare, Henkin did several practice runs months prior in front of seasoned lawyers and Supreme Court litigation practitioners acting as justices.
In these so-called “moot hearings,” the “justices” frequently interrupted Henkin mid-sentence. They peppered him with questions designed to poke holes in his argument, mimicking the judicial philosophies of some of the real Supreme Court justices.
After one mock hearing, the acting justices advised Henkin to tighten up his arguments and pack his answers into digestible chunks. They also praised his ability to keep a slow and steady pace, a skill he’s learned after nearly 25-plus years living in a low-key place like Hawai‘i.
Despite the formidable forum, Henkin enjoyed appearing before an “active bench.”
“I really like having a conversation with the judges,” says Henkin. “I like the back and forth. I think that’s when I’m at my best.”
By the night before the argument, Henkin felt he had done everything he could do to prepare.
I was relaxed,” Henkin says. “The thing to do was to be fully present.”
The morning’s hearing began with the call of “Oyez! Oyez! Oyez!” from the Marshall of the Court. A crowd of 200 people rose as nine justices in black robes emerged from behind red-velvet curtains like the opening act of a play.
Up first was opposing counsel.
Debate quickly circled around the definition of the word “from.” The Clean Water Act requires polluters to get a permit if they are responsible for “any addition of any pollutant to navigable waters from any point source.”
The Trump administration’s lawyer argued that the pollution off Maui’s coast came directly “from” the groundwater, not the sewage treatment facility. He offered a folksy analogy:
“If at my home I pour whiskey from a bottle into a flask and then I bring the flask to a party at a different location and I pour whiskey into the punch bowl there, nobody would say that I had added whiskey to the punch from the bottle.”
In this telling, “from” in the statute refers to how pollution (the whiskey) reaches the navigable waters (the punch bowl), and the answer is the flask (groundwater, not Maui’s sewage system).
Then it was Henkin’s turn.
Under intense questioning from the justices, Henkin pivoted back to the analogy.
“Congress was trying to prohibit whiskey in punch,” Henkin started, cutting through the tension in the courtroom by drawing supportive laughs.
“So if all of a sudden you tasted the punch and you said, ‘This tastes like whiskey,’ you’d say, ‘Where did that come from?’ You wouldn’t point to [the flask], you’d say it came from the whiskey bottle. That’s how we know it’s whiskey.”
The whiskey in this case, he continued, is the pollution coming from Maui’s sewage system that is pumping 3 to 5 million gallons per day into the ocean.
Later, the punch bowl exchange would become the centerpiece of media accounts.
After the hearing concluded, clients from the West Maui Preservation Association greeted Henkin with a lei, or Hawaiian garland. It was made with maile, a native forest vine, and kukuna-o-ka-lā, the flower of the mangrove introduced to Hawai‘i at the start of the American period. The two together represent the connection between the forest and the ocean, and the native and the introduced.
Back at Henkin’s rental apartment, among a gathering of friends and family, champagne flowed as it had decades ago with the antitrust case that began his career. This time, though, Henkin felt deep satisfaction from strongly defending the clean water of millions of Americans, including Earthjustice’s Maui clients.
“I was happy that I was able to present what I thought was a strong case to the Court,” Henkin says. “You can never predict the outcome, but whatever outcome we get, I can hold my head high.”
When the outcome finally came in April, it was sweet.
The court held that the Clean Water Act prohibits unpermitted discharge of pollution “into navigable waters, or when the discharge reaches the same result through roughly similar means," such as through groundwater
In arriving at this decision, the Court rejected the Trump Administration’s polluter-friendly position in the clearest of terms: “We do not see how Congress could have intended to create such a large and obvious loophole in one of the key regulatory innovations of the Clean Water Act.”
Justice Breyer wrote the decision for the 6-3 majority; with Chief Justice Roberts joining the opinion, along with Ginsburg, Sotomayor, Kagan and Kavanaugh.
For Henkin, the victory represents the deep impact he came to Earthjustice to make: “This decision is a huge victory for clean water.”