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A Maui Beach Photo: Ron Dahlquist, Associated Press via LA Times
In a huge win for the Clean Water Act, by a 6-3 majority, the Supreme Court held that municipalities and others that discharge pollution are subject to the Act’s restrictions when they discharge into groundwater or ditches and the pollution ends up in a water body covered by the law, such as a lake or the ocean. The Court created a new test, saying that an Environmental Protection Agency permit is required when a discharge — such as one into groundwater — is “the functional equivalent” of a direct release into navigable waters.
Why This Matters: A six vote majority for a pro-conservation interpretation of the Act, including the Chief Justice and Trump-appointee Kavanaugh, is significant beyond this case. As we wrote after oral arguments in the case, if the Court had found that a polluter is allowed to discharge into another medium like groundwater to effectively “launder” their pollution, it would have created a huge loophole in the Act. The law was already significantly narrowed this week when the Trump administration severely limited the definition of what constitutes a “navigable water” of the U.S. (the WOTUS rule). It’s some very good news on which to end Earth Week.
Environmental Lawyers Cheered the Ruling
One of the attorneys who argued the case before the court, David Henken, said, “This decision is a huge victory for clean water. The Supreme Court has rejected the Trump administration’s effort to blow a big hole in the Clean Water Act’s protections for rivers, lakes, and oceans.” Similarly, Harvard Law professor Richard Lazarus (our Interview of the Week last Friday)told The Washington Post “that the test endorsed by the court’s majority is ‘one under which environmentalists can prevail in most every kind of case that environmentalists have brought under the Clean Water Act.'” And the director of the University of Maryland’s environmental law program told E&E News in an email, “The fact that it commands the vote of six Justices is a hopeful sign that a solid majority of the Court understands the importance of laws like the Clean Water Act, which are fundamental to our nearly half-century effort to clean up America’s environment.”
What Happens Now?
The case is now remanded back to the lower court to hear arguments about how the Supreme Court’s new “functional equivalent” test should be applied to the facts in this case. According to The Wall Street Journal, Maui Mayor Michael Victorino said the ruling was “a step toward the clarity we have advocated for.” Mr. Henkin told The Journal that if Maui loses back at the lower court, they have a conditional settlement with Maui that would require the county to undertake a project that redirects its wastewater for recycled use in agriculture and golf-course irrigation. The U.S. Court of Appeals for the 9th Circuit had ruled that a permit was required if the pollution was “fairly traceable” to a source, but the Supreme Court’s majority said that such an interpretation was too broad, so many saw the decision as a pragmatic compromise.
A federal court on Monday put on hold President Trump’s February order that overturned agency scientists and revised federal water supply plans in California, frustrating a political promise he made to farmers in central California to lift water restrictions for the benefit of agriculture there.
Why This Matters: This decision is just a temporary hold on the Trump administration’s water grab. But the time is key for both the species at risk of extinction and for the farmers who will lose out on additional water that they would get to take out of the system for agriculture now, while there is spring runoff happening — water they can’t get back later because it is already flushed through the system.
Shocking as it may be, there are 2 million Americans living in such poverty that they lack running water, and tens of millions of others may have water in their homes but it is hardly safe to bathe in, much less drink, The Washington Post reports. These extreme conditions are exacerbating the spread of COVID-19 in minority communities in the deep south and Navajo Country.
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