q&a+water: Sara Colangelo

q&a+water: Sara Colangelo

Director of the Georgetown University Environmental Law Program

In this issue’s Q&A, Texas+Water Editor-in-Chief, Dr. Todd Votteler, interviews Sara Colangelo, Director of the Environmental Law & Policy Program at the Georgetown University Law Center.

Prior to joining Georgetown, she served as a trial attorney for eight years at the Environment and Natural Resources Division of the U.S. Department of Justice’s Environmental Enforcement Section. Colangelo is the recipient of the 2020 Fahy Teaching Award for Georgetown Law.

The U.S. Supreme Court recently handed down a decision on an appeal of a Clean Water Act case originating in Hawaii, County of Maui v. Hawai’i Wildlife Fund. What were specifics of County of Maui v. Hawai’i Wildlife Fund about?

The County of Maui’s wastewater reclamation plant in Lahaina collects sewage, partially treats it and injects the resulting mixture into four wells hundreds of feet underground. From the wells, the effluent — three to five million gallons per day — travels about half a mile, then emerges from submarine fissures in the Pacific Ocean. Since the 1980s, this plant conveyed and continues to convey excess nutrients and pathogens to a favorite coral reef snorkeling spot, Kahekili Beach. The legal dispute concerned whether the pollutants’ journey through groundwater before reaching the ocean exempted the County’s plant from federal permitting requirements under the Clean Water Act (CWA).

The Clean Water Act requires “point sources” of pollution to secure a National Pollution Discharge Elimination System (NPDES) permit for “any addition of any pollutant to navigable waters.” 33 U.S.C. §§1311(c), 1362(12). The County of Maui case presented a rare situation where everyone agreed the wells qualified as “point sources,” and that the pollution from the wells reached “navigable waters.” But for years the parties could not agree whether the County could do indirectly what they could not do directly under the Act; that is, discharge pollutants into the ocean without a permit. After negotiations failed, local environmental groups lead by Earthjustice sued under the citizen suit provision of the Clean Water Act, alleging the County needed to obtain an NPDES permit. Such a permit would mandate more stringent, and more costly, treatment standards.

The District Court of Hawaii agreed with the citizen groups, finding the discharge was “functionally one into navigable water” because the pollutants’ path to the ocean was “clearly ascertainable.” Hawai’i Wildlife Fund v. Cty. of Maui, 24 F. Supp. 3d 980, 998, 1000 (D. Haw. 2014). The Ninth Circuit affirmed, but devised a novel test, holding that permits are required when pollutants are “fairly traceable” from a point source to navigable waters. Hawai’i Wildlife Fund v. Cty. of Maui, 886 F.3d 737, 749 (9th Cir. 2018). Under President Obama, the EPA sided with environmentalists and advocated for the Agency’s long-standing position that the CWA’s permitting requirement applies to discharges into groundwater with a “direct hydrological connection” to surface waters.

That 2018 decision contributed to a circuit split over whether an NPDES permit is required when pollutants are conveyed from a point source indirectly to navigable waters, i.e., through groundwater. The Fourth Circuit held that an NPDES permit is required for discharges to groundwater with a “direct hydrological connection” to a point source. Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637, 651 (4th Cir. 2018). The Sixth Circuit, however, held that an NPDES permit would never be required for discharges to groundwater. Kentucky Waterways All. v. Kentucky Util. Co., 905 F.3d 925, 933 (6th Cir. 2018). When you combine a circuit split with an advocate skilled at agitating the four votes necessary to grant certiorari, you have a recipe for the next Clean Water Act Supreme Court case.

How did the U.S. Supreme Court rule in County of Maui v. Hawai’i Wildlife Fund?

The Court ruled 6-3 that an NPDES permit is required if the addition of pollutants through groundwater is the “functional equivalent” of a direct release into navigable waters from a point source. Justice Breyer’s opinion garnered votes from Chief Justice Roberts and Justices Ginsburg, Sotomayor, Kagan and Kavanaugh.

In crafting the “functional equivalent” test, the Court rejected the legal positions of both the Petitioner County of Maui and the Respondent environmental groups as too extreme. The Court found the Ninth Circuit’s “fairly traceable” test too broad, sweeping in examples Congress did not intend such as pollutants carried on a bird’s wing. So too, the more narrowly tailored position of Respondents before the Supreme Court: They offered a permit was necessary whenever any pollutants “actually and foreseeably reach navigable surface waters” and suggested the tort concept of proximate cause as a limiting principle. But the Court still declined that proposal. Moreover, in a nod to federalism concerns, the Court observed “the structure of the [CWA] indicates that, as to groundwater pollution and nonpoint source pollution, Congress intended to leave substantial responsibility and autonomy to the States.”

But the Court also found the test offered by the County too narrow. The County proffered a “means of delivery test,” that an NPDES permit is necessary if a point source is the final conveyance for the pollution to navigable waters. If there was intervening media between the point source and the navigable water, no matter how brief in space or time, the discharge would be exempt from federal permitting. The Trump Administration filed a brief in support of Maui County. It adopted a new position that discharges to groundwater are exempt from the NPDES program, as expressed in a 2019 “Interpretative Statement” from the EPA.  

The Court dismissed that position as a roadmap for evasion of the Act, violating its animating protectionist purpose. “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 admonished. Under the County’s approach, he theorized a discharger could “simply move the pipe back, perhaps only a few yards, so that the pollution must travel through at least some groundwater before reaching the sea.”

After spurning the parties’ proposed tests, Justice Breyer crafted his own. He began with a deft linguistic analysis. Focusing on the preposition “from” and its object “to” in the statutory text, he cogitated: Was the discharge to the surface water “from” the point source, the ground water or both? Justice Breyer also explored everyday usage scenarios, from travelers to meat drippings in a pan. At oral argument the examples even included whiskey-spiked punch and debate over whether the whiskey was “from” the flask or “from” Scotland. That plain language analysis and a hefty consideration of statutory purpose and structure resulted in the “functional equivalent” test. Justice Breyer explained “[w]hether pollutants that arrive at navigable waters after traveling through groundwater are ‘from’ a point source depends upon how similar to (or different from) the particular discharge is to a direct discharge.”

But the Court acknowledged its test may be unavoidably imprecise. To facilitate implementation by courts and regulators and to provide guidance to the regulated community, Justice Breyer clarified the ends of the spectrum. “Where a pipe ends a few feet from navigable waters and the pipe emits pollutants that travel those few feet through groundwater… the permitting requirement clearly applies.” At the other end of the spectrum is a pipe that “ends 50 miles from navigable waters.” Justice Breyer advised, if the pipe emits “pollutants that travel with groundwater, mix with much other material and end up in navigable waters only many years later, the permitting requirements likely do not apply.”

He also provided a non-exhaustive list of factors to consider: (1) transit time; (2) distance traveled; (3) nature of the material through which pollutants travel; (4) extent to which pollutants are diluted or chemically altered through the travel; (5) amount of pollutant entering the navigable waters relative to leaving the point source; (6) manner by or area in which the pollutant enters navigable waters; and (7) degree to which pollution maintains its identify during transit.

Justices Thomas and Gorsuch dissented, arguing the majority’s decision was not supported by the text of the statute and they would have held “that a permit is required only when a point source discharges pollutants directly into navigable waters.” Justice Alito dissented separately to emphasize the ruling created a vague standard, “invit[ing] arbitrary and inconsistent application.”

Ultimately, because the Ninth Circuit applied a broader legal standard, the Court vacated that judgment and remanded the case for analysis under the test articulated by the majority. Most believe, based on the decisions and factual findings in the courts below, Maui will be required to get an NPDES permit for the Lahaina reclamation plant. The parties may finally settle rather than finance further litigation with a predictable outcome.

What are the broader implications in decision on County of Maui v. Hawai’i Wildlife Fund for the Clean Water Act?

The decision maintains crucial protection for as oceans, lakes, rivers and groundwater-fed aquifers, which may prove particularly important to certain regions of Texas. We do not yet know whether the decision will significantly expand the universe of permitees under the Act or how much litigation it might spur. Indeed, to what extent will “functional equivalency” actually differ from EPA’s prior interpretation based on “hydrologic connection” between a point source and jurisdictional water?

For now, we have Justice Breyer’s prescriptions for implementation. He invites EPA to provide specificity through guidance and regulations that comport with the decision. Then, to allay concerns about private landowners, Justice Breyer suggests EPA and states could develop general permits for common situations. Further, he notes that the test will evolve and become more precise as district courts apply it in varied situations. Finally, he encourages district court judges to exercise their discretion when setting penalties under the statute, “mindful” of the “complexities” of indirect discharges and “when… a party could reasonably have thought that a permit was not required.”

The use and impact of these prescriptions may be delayed. We can surmise there is neither appetite nor, perhaps, time for the Trump Administration to promulgate such technical regulations: That task will likely be left to a future, differently constituted EPA. Further, we can assume there will be little devotion of resources to government enforcement against indirect dischargers in the short term. In the meantime, though, we may see citizen groups pursue claims under the Maui test for certain agricultural, mining or other industrial dischargers. In addition, States with delegated NPDES program authority like Texas could set out how the “functional equivalency” factors should be balanced as they issue permits both specific and general.

Critics of the Maui decision lament its potential implications. They complain the majority’s standard is too vague, creating insufferable uncertainty and an invitation to litigate. Perhaps so, but probably not. Recall the similar tact Justice Stevens used in Burlington Northern to guide us in the useful product defense – setting the spectrum just as wide: “CERCLA liability would attach… if an entity were to enter into a transaction for the sole purpose of discarding a used and no longer useful hazardous substance. It is similarly clear that an entity could not be held liable as an arranger merely for selling a new and useful product if the purchaser of that product later… disposed of the product in a way that led to contamination.” Burlington N. & Santa Fe Ry. Co. v. United States, 556 U.S. 599, 609–610 (2009). Finally, at a granular level, these types of cases seem more likely to settle now, rather than to proceed to litigation. A seven factor scientific test is unlikely to be resolved via summary judgment and a trial on highly technical factors would be quite expensive.

Did the ruling in County of Maui v. Hawai’i Wildlife Fund surprise you in any ways?

The Justices’ dissatisfaction with the limiting principles offered by the advocates at oral argument was palpable. It is no surprise that neither parties’ theory won out. Justice Breyer pointedly asked for a way to narrow the broad test from the Ninth Circuit yet avoid the obvious opportunity for evasion available under the County’s position: “So what happens if you just take the pipe and you decide…we’re going to end the pipe 35 feet from the river… know[ing] perfectly well that it’ll drip down into the ground and it’ll be carried out into the navigable water… What I’m looking for in this case is what’s a standard that will prevent evasion….” Transcript of Oral Argument, Cty. of Maui v. Hawaii Wildlife Fund, 140 S. Ct. 1462 (2020) (No. 18-260) at 8-10. He even floated the functional equivalent language at argument, drawing a clarifying question from the Chief and an acknowledgement that they would “discuss [it]” later. Id. at 31, 45, 48-51.

So perhaps the decision itself is less surprising than the way Justice Breyer crafted the opinion. It contained a robust grammatical rationale, but it was above all, rooted in statutory purpose. Justice Breyer invoked over and over the purposes animating the Clean Water Act in the same breath as language and structure. This is a rarity in modern opinions, which usually focus on plain meaning informed by dictionary definitions, with statutory structure playing only a supporting part and statutory purpose a passing role at best. Accordingly, Justice Kavanaugh signing on was indeed a surprise. But his concurrence invoked Justice Scalia both in overt reference to his opinion in Rapanos, and in a fervent commitment to textualism regardless of its outcome, here aligning Kavanaugh with an environmentally friendly result.

Finally, the biggest surprise may be that we even have a decision in this case. The twists leading up to oral argument were about as dramatic as is ever seen at the Court. In September, 2019, a few weeks prior to oral argument, the Maui County Council voted to settle this case. However, Maui Mayor Michael Victorino declared he had the absolute authority to settle the case and refused to do so. The tension played out with dueling letters to the Court, both purportedly on behalf of Maui, regarding the settlement status.

Would you consider the ruling in County of Maui v. Hawai’i Wildlife Fund to be a major ruling regarding the Clean Water Act?

County of Maui is the first Clean Water Act Supreme Court case in more than a decade. That distinction alone renders it major. Additionally, beyond Breyer’s purpose-based reasoning mentioned above, two other features of the opinion are major. Primary among them is the political and deregulatory climate in which the votes for this decision were cast. The Court announced its decision the same week as the Trump Administration finalized a separate regulation limiting federal jurisdiction of the Act and excluding groundwater in its entirety. The Navigable Waters Protection Rule: Definition of “Waters of the United States”, 85 Fed. Reg. 22,250, 22,251 (April 21, 2020). Had the Court agreed to the position forwarded by the EPA and County here, the combined impact with the Rule would have been a severe narrowing of the Act’s protection for surface waters. But the Court here signaled that the Administration’s constricted reading of the CWA strayed too far from Congress’ intent, handing the environmentalists a defensive victory. While the Maui decision will not invalidate the proposed regulation automatically, it could provide stronger grounds for legal challenge to the rule. E.g. Chesapeake Bay Foundation, Inc. et a v. Wheeler et al, 1:20-cv-01063 D. Maryland (filed April 27, 2020).

Another major feature of the decision relevant to the water law community was the significant role hydrology and aquatic biology played. The facts of Maui overwhelming demonstrated substantial harm from the discharges at issue. Mobilized by geochemists at the University of Hawaii, Manoa, scientists examined seaweed for nitrogen isotopes correlated to anthropogenic sources, fitted drones with infrared lenses to detect plumes of atypically warm water and conducted a dye tracer study, proving more than 60% of the effluent injected in the wells emerged into the reef. The reef itself showed obvious harm over the years the plant operated and the aquatic life and diversity declined. In fact, the Court cited the amicus brief on behalf of scientists in the beginning of its opinion. Thus, while statutory purpose and language provided the foundation for the opinion, the “functional equivalent” test is a scientific one. Delineating the scope of the NPDES program based on technical determinations whether pollutants will reach and impact surface waters is a faithful reading of the Act. It balances Congress’ environmental and human health aims while respecting state authority over purely intrastate resources.

What does the Supreme Court’s decision mean with regard to judicial deference to U.S. Environmental Protection Agency?

The Maui decision typifies the Trump Administration’s view (and certainly that of some on the Court) that Chevron deference is outmoded. Chevron deference is a judicially-created doctrine requiring courts to defer to an administrative agency’s reasonable interpretation of a statute it administers if the language at issue is ambiguous. The Solicitor General never asked for Chevron deference here, but argued simply “the proper interpretation of the statute is the one reflected in EPA’s Interpretative Statement.”  

None of the Justices deferred to EPA’s new position. Instead, the Court went out of its way to warn that EPA could not roll back protections so as to “open a loophole allowing easy evasion of the statutory provision’s basic purposes.” Justice Thomas even declared “EPA’s reading is not the best one” in his dissent. And though there is no heightened scrutiny for an agency’s change of positions, the abandonment of EPA’s decades-old stance may have made the Court uneasy.

Although Chevron deference was absent from the decision, EPA’s long-standing administrative practice still influenced the majority and assuaged concerns over federalism and individual landowners. The Court remarked that when EPA followed the “direct hydrologic connection” test, there was no “unmanageable expansion of the program.” Ultimately, it observed that over decades under a legal standard similar to “functional equivalence,” the parade of horribles the Petitioners and their amici envisioned for the Court never materialized.