Last Friday, 11 different groups that include former Environmental Protection Agency (EPA) Administrators, 13 states, a Native American tribe, craft brewers, and clean water advocates filed briefs in support of Earthjustice and its Maui community clients in a Supreme Court case that threatens to gravely weaken the federal law that protects the nation’s clean water. The groups filed amicus curiae (“friend of the court”) briefs in Hawai‘i Wildlife Fund v. County of Maui. This case that will ultimately decide whether the Clean Water Act (CWA) regulates wastewater treatment plants, chemical plants, concentrated animal feeding operations, oil refineries, and other industrial facilities and sources that dump pollutants into the nation’s waterways via groundwater.

Earthjustice attorney David Henkin stated:

“As the amicus briefs vividly illustrate, this case pits those who are committed to the protection of life-giving, clean water against the Trump administration and polluting industries that want free rein to use groundwater as a sewer to dump their waste and toxic discharges into our nation’s lakes, rivers, and oceans.”

The following are excerpts and summaries of arguments from some of the amicus briefs:

• A bipartisan group of former EPA Administrators reaching back to the George H.W. Bush Administration: “Accepting the United States’ recent reversal in position would effect a significant rollback in regulatory enforcement of the Clean Water Act that has been in place for decades:

  “[T]he United States’ new position — adopted after this Court granted the petition for a writ of certiorari in this case — is inconsistent with the statute and would open an enormous loophole in what Congress intended to be a comprehensive statutory scheme.”

• Former EPA Officials, including former Regional Administrators and Assistant Administrators for Water: “Discharges that pass through groundwater to surface waters from sources such as concentrated animal feeding operations, mines, and coal ash impoundments can cause significant harm to public health and the environment. A decision to reverse the Court of Appeals would eliminate CWA protections against these discharges.”
• State of Maryland, et al., 13 states, plus the District of Columbia: “Accepting Petitioner’s position would allow savvy entities to avoid altogether the Clean Water Act’s prohibition on unpermitted discharges from point sources. Instead of discharging directly into a river, a polluter might move its discharge pipe into immediately adjacent groundwater and, if Petitioner’s position were correct, thereby evade the Clean Water Act.”
• Anderson County, South Carolina and Decatur County, Tennessee: “Petitioner alleges that under the CWA as applied by the Ninth Circuit, individual homeowners would be subject to point source permitting across ‘22 million homes in the country.’ This claim is as absurd as it sounds.

  “There is no replacement for the National Pollutant Discharge Elimination System (“NPDES”) when it comes to protecting navigable waters.”

• Fond Du Lac Band of Lake Superior Chippewa, a federally-recognized tribe with treaty rights to natural resources already harmed by pollution of surface waters: “Under existing federal environmental laws, the Clean Water Act’s plain language represents the only statutory path to protect the Band’s natural resources from point source discharges.

  “Petitioner’s proposed loophole in the Clean Water Act would allow dischargers to avoid the Clean Water Act’s reach by simply moving an outfall underground or onto a beach, leaving surface waters unprotected and contravening the Clean Water Act’s purpose.”

The full list of amicus petitioners:

• Former EPA Administrators
• Former EPA Officials
• States of Maryland, California, Connecticut, Illinois, Maine, Michigan, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington, the Commonwealth of Massachusetts, and the District of Columbia.
• Fond Du Lac Band of Lake Superior Chippewa
• Anderson County, SC and Decatur County, TN
• Trout Unlimited
• Constitutional Accountability Center
• Craft Brewers
• Aquatic Scientists and Scientific Societies: four scientists and eight national and international scientific societies actively researching and addressing issues related to aquatic ecosystems in the United States.
• Law Professors: a diverse group of 37 law professors from across the nation, including many prestigious environmental law programs.
• Upstate Forever/Savannah Riverkeepers

Background:

In February, the U.S. Supreme Court agreed to take up an appeal of this Clean Water Act case from Hawaiʻi concerning millions of gallons of treated sewage that is discharged into the Pacific Ocean each day from injection wells at the County of Maui’s wastewater treatment facility. The County argues it does not need Clean Water Act permits because it is not discharging directly into waters of the United States. The Hawaii federal district court and a unanimous panel of the 9th Circuit appeals court repeatedly rejected the county’s claims.

In 2018, EPA filed a friend of the court brief in the 9th Circuit agreeing that the county was acting illegally. In April 2019, EPA under the Trump administration issued a new guidance reversing the position the agency had consistently taken under decades of Republican and Democratic administrations, effectively giving chemical plants, concentrated animal feeding operations, oil refineries, and other industrial facilities free rein to discharge pollutants into the nation’s waterways via groundwater without Clean Water Act permits. The Supreme Court will ultimately decide if these actions are legal.

Earthjustice represents four Maui community groups: Hawaiʻi Wildlife Fund, Sierra Club-Maui Group, Surfrider Foundation, and West Maui Preservation Association.