Clean Water Victory: Supreme Court Rules Against Hawaii Polluter and Trump Administration

The news came down today that the U.S. Supreme Court, ruled by conservative justices, ruled in favor of the Clean Water Act and clean water lovers everywhere. The surprising 6-3 decision made clear that polluting groundwater that ends up in a “navigable waterway” is still polluting the waterway and, thus, the water. Really this is a victory of ecological common sense: a sewage plant in Maui County can’t pollute the groundwater because the groundwater ends up in the Pacific Ocean. This is the equivalent of polluting the Pacific Ocean. Polluting the Pacific Ocean is not in the best interests of keeping the Pacific Ocean clean. But I digress.

The NY Times covered the court decision, which was written by Justice Stephen Breyer. Both sides, said Breyer, including the Trump administration, which sided with the polluting County of Maui, were a bit extreme in their arguments. Here’s what Breyer wrote, according to the NY Times, regarding the argument of the environmentalists, which the Ninth Circuit had ruled in favor of:

The Ninth Circuit’s approach, [Breyer] wrote, “would require a permit in surprising, even bizarre, circumstances, such as for pollutants carried to navigable waters on a bird’s feathers, or, to mention more mundane instances, the 100-year migration of pollutants through 250 miles of groundwater to a river.”

But why is it “bizarre” to take into consideration how groundwater moves over time? What’s bizarre is to allow any pollution of our groundwater at all by a big, industrial source. Fortunately, Breyer and the other five Supreme Court justices did not fall for some really ridiculous sophistry:

It was undisputed that the injection wells in Maui were “point sources.” The case turned largely on whether indirect discharges were considered “from” the wells.

When the case was argued in November, the lawyers debated whether, say, whiskey added to punch from a flask could be said to be “from” the original bottle or, indeed, from a barrel in Scotland.

I can assure my readers that a bottle of good Scotch would never be added to “punch,” but if it were, perhaps in a drunken accident, it would have arrived both “from” the bottle and “from” Scotland and “from” the hopefully very clean water of Scotland. Corporate lawyers and polluters have problems with connecting distant and disparate things, but poets and ecologists do not.

Here is a statement from winning Earthjustice attorney David Henkin:

“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.

“We will have to return to the lower court to confirm this, but we fully expect that Maui County’s sewage plant will be required to get a Clean Water Act permit as a result of the Court’s decision today. That permit will require the County to protect the ocean from sewage discharges in a way it has refused to do to date.

“We are glad the Court has recognized the importance of protecting clean water for all Americans.”

Earthjustice Attorney David Henkin (Photo by Earthjustice)

It is good to know, in this dire time of Trump and a deadly pandemic, that the Clean Water Act is still viable enough to convince two conservative Supreme Court justices (Roberts and Kavanaugh) to side with the law. All is not lost; things do not always fall apart; sometimes they hold together and embrace us all.

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