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Supreme Court rejects Trump administration’s view on key aspect of Clean Water Act

Justice Stephen G. Breyer’s compromise language said an Environmental Protection Agency permit is required when a discharge is “the functional equivalent” of a direct release into navigable waters.

The decision was a step back from a victory that environmentalists had won in a lower court, but one they were happy to accept.

“This decision is a huge victory for clean water,” said David Henkin, an attorney for Earthjustice who argued the case. “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.”

While the decision sends the case back to lower courts, Henkin said, “we fully expect that Maui County’s sewage plant will be required to get a Clean Water Act permit [requiring] the county to protect the ocean from sewage discharges in a way it has refused to do to date.”

Other environmental law experts agreed and said the court’s decision will affect cases around the country.

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,” said Richard Lazarus, an environmental law expert at Harvard Law School.

All agree that sewage plants and others must get a permit under the Clean Water Act when they produce pollutants that go from the plant to a body of navigable water.

Maui County injects 3 million to 5 million gallons of treated wastewater into four deep injection wells about a half-mile from the shore. Some of that wastewater eventually gets into groundwater, which tests have shown eventually reaches the Pacific Ocean. Environmentalists said the polluted water had damaged a coral reef.

But the issue can also affect agricultural interests, mining companies and home builders, and some justices worried during oral arguments that it could even impact individual homeowners with septic tanks.

During the Obama administration, the EPA had sided with environmentalists in the case. But it reversed its position after President Trump took office and said discharges into groundwater fell largely outside the law. Only direct discharges into navigable waters were covered, it said.

Breyer wrote that the administration’s interpretation could not be right. All a polluter would need do to avoid regulation would be, for instance, to end a discharge pipe just before reaching the water, he said.

“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,” Breyer wrote.

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 Breyer said that was too broad, allowing “EPA to assert permitting authority over the release of pollutants that reach navigable waters many years after their release (say, from a well or pipe or compost heap) and in highly diluted forms.”

He had proposed the “functional equivalent” standard at oral argument, and he acknowledged then and in Thursday’s opinion that it could be criticized as vague.

“But there are too many potentially relevant factors applicable to factually different cases for this court now to use more specific language,” he said. The test will evolve through EPA regulations and lower court decisions.

Breyer was joined by Chief Justice John G. Roberts Jr. and Justices Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan and Brett M. Kavanaugh.

Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch dissented.

They said the majority’s decision was not supported by the text of the law and leaves too many questions unanswered.

“The court makes up a rule that provides no clear guidance and invites arbitrary and inconsistent application,” Alito wrote in his dissent. Water authorities won’t know if they are covered, and “regulators are given the discretion, at least in the first instance, to make of this standard what they will. And the lower courts? The Court’s advice, in essence, is: ‘That’s your problem. Muddle through as best you can.’”

The case is County of Maui v. Hawaii Wildlife Fund.

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