By Lawrence Hurley
WASHINGTON (Reuters) – U.S. Supreme Court justices on Wednesday wrestled over whether a wastewater treatment plant in Hawaii is subject to a federal water law in an important environmental case, with justices on both sides of the ideological divide appearing to be search for a compromise.
In a case that could limit the scope of a landmark law aimed at curbing water pollution, the nine justices heard a one-hour argument in an appeal by Maui County of a lower court ruling siding with the Hawaii Wildlife Fund in its 2012 lawsuit accusing local officials of violating the 1972 Clean Water Act.
The San Francisco-based 9th U.S. Circuit Court of Appeals last year found that a Clean Water Act programme – requiring property owners responsible for polluted water discharged from pipes, drains or other “point sources” to obtain federal permits – should apply to discharges from the county wastewater facility that end up in the Pacific Ocean.
The justices court seemed receptive to concerns raised by environmentalists that a ruling for the county could allow for polluters to easily evade federal jurisdiction. But several of them appeared worried that a ruling favouring the environmental group could allow a massive increase in the number of people, including individual homeowners, who could require permits.
The Hawaii Wildlife Fund and other environmental groups accused the county of violating the Clean Water Act because several million gallons of treated wastewater from the Lahaina Wastewater Reclamation Facility ends up in the Pacific every day.
The legal question is whether the county needs a permit even though the waste reaches the ocean via groundwater and is not discharged directly into the ocean through a pipe or other means.
President Donald Trump’s administration sided with the county, noting that the U.S. Environmental Protection Agency, which oversees enforcement of the Clean Water Act, concluded in April that any discharges into groundwater are not covered by the federal permit programme.
The Trump administration has rolled back numerous environmental regulations. One of its plans is to reduce federal jurisdiction over waterways, reversing the approach taken by the administration of Trump’s Democratic predecessor Barack Obama.
The EPA did not go as far as to endorse Maui County’s view that all discharges that indirectly reach a waterway from a point source are excluded from the permit programme.
States have separate authority to regulate discharges into groundwater.
A ruling is due by the end of June. A decision in favour of the county would limit the ability of environmental groups to sue for Clean Water Act violations in certain cases. After the Supreme Court agreed to hear the case, the county council agreed to a settlement but the county’s mayor refused to sign off on it.
The eventual ruling could affect a similar appeal pending with the justices brought by Houston-based pipeline company Kinder Morgan Inc seeking to fend off a lawsuit by two environmental groups over a 2014 pipeline leak in South Carolina that spilled 370,000 gallons of gasoline and diesel, which seeped from groundwater into waterways.
(Reporting by Lawrence Hurley; Editing by Will Dunham)