Supreme Court to Consider Reinterpreting Clean Water Act

February 20, 2019 Updated: February 20, 2019

WASHINGTON—The Supreme Court’s decision Feb. 19 to hear a water pollution case from Hawaii could signal that the court is considering reversing new powers to regulate pollution granted in a recent decision, and reining in some of the regulatory stances of the Obama-era Environmental Protection Agency.

Maui County has appealing a novel Feb. 1, 2018, interpretation of the Clean Water Act by the 9th Circuit Court of Appeals that gave the EPA sweeping new powers to regulate pollution that travels through groundwater.

The appeal, titled County of Maui v. Hawaii Wildlife Fund, is one of several cases pending before the Supreme Court that the justices could use as a vehicle to tear away at the legal underpinnings of the modern administrative state.

Independent executive agencies are sometimes referred to as the “fourth branch” of the federal government in the United States; critics say officials in the administrative state are unaccountable to voters. Unelected bureaucrats are said to usurp the functions of the executive, legislative, and judicial branches, and critics say the agencies of the Obama administration, in particular, were prolific and bold in their regulatory overreach.

Congress, they say, is supposed to make the laws of the land, but lawmakers have steadily ceded that body’s constitutional powers to the administrative state, to the overall detriment of society.

If the 9th Circuit decision that gives EPA authority to regulate pollution that reaches surface water by means of groundwater isn’t reversed, “every homeowner with a septic tank could be subject to harsh treatment from agency bureaucrats,” Damien Schiff of the Pacific Legal Foundation, which filed a friend-of-the-court brief in the case, said in a statement.

“Congress has never asked federal agencies to regulate all pollution everywhere in the country,” Schiff said, adding that the scope of the Clean Water Act “has been a contentious and controversial issue for decades.”

Regulating pollution such as discharges from septic tanks has generally been left to state and local governments.

The county of Maui, too, argues that if Congress wanted the EPA to regulate every single discharge in the United States that may somehow eventually find its way to groundwater, then it should have specifically included the authority to do that in the Clean Water Act.

The Supreme Court previously reined in the Clean Air Act in Utility Air Regulatory Group v. EPA because the EPA improperly expanded federal jurisdiction to “millions” of sources that formerly didn’t require permits under the statute, the county noted in its petition to the high court.

The court stated in that 2014 ruling that it was skeptical of the claimed “discover[y] in a long-extant statute an unheralded power to regulate ‘a significant portion of the American economy.’ ” Congress has “to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance,’ ” such as “[t]he power to require permits for the construction and modification of tens of thousands, and the operation of millions, of small sources nationwide.”

Earthjustice, a left-wing public interest law firm that specializes in environmental cases, represents the Hawaii Wildlife Fund in court.

“We are confident the Supreme Court will agree with the appeals court that, when Congress passed the Clean Water Act to protect our nation’s waters, it did not give polluters a loophole to use groundwater as a sewer to convey harmful pollutants into our oceans, lakes, and rivers,” said David Henkin, a Honolulu-based staff attorney at Earthjustice.

In addition to the Hawaii Wildlife Fund, Sierra Club-Maui Group, Surfrider Foundation, and West Maui Preservation Association are listed as respondents in the proceeding. All are represented by Earthjustice.

The groups sued the county in 2012 in an effort to protect coral reefs at Kahekili from the 3 million to 5 million gallons of treated sewage they say the Lahaina Wastewater Reclamation Facility pumps each day into the Pacific Ocean.

Although treated, “the sewage still contains a variety of contaminants, including excess nutrients that have been linked to algae blooms and are shown to damage coral reefs,” according to Earthjustice.