Supreme Court Closes Loophole, Ensures the Integrity of the Clean Water Act

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.

To Go Deeper:  Read the entire opinion here.

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