By Makayla Lopez*
County of Maui v. Hawaii Wildlife Fund was argued before the U.S. Supreme Court in early November.[i] Called the “Clean Water Case of the Century” by EarthJustice, the ruling of this case will have vast ramifications for impending Clean Water Act cases.[ii] A ruling for the Country of Maui would mean that polluting U.S waters, including the ocean, would be allowed as long as the pollution is not put directly into the water source.[iii] This would be a drastic reversal of the current application of the Clean Water Act.[iv] At the center of this landmark case are a coalition of craft brewers, whose amicus brief has the potential to impact court and the broader public—through their framing of environmental issues through a business and tourism lens.
The case concerns the County of Maui’s Lahaina Wastewater Reclamation Facility and its effluent treatment practices. The broad terms, the facility has been discharging their treated sewage into groundwater that reaches the waters off a local beach.[v] Over ninety-percent of this treated water enters the ocean; the county does not dispute this. The legal question here is if these practices are permissible because the groundwater is the intermediary where the pollutants are discharged before reaching the ocean.[vi] Since the CWA only regulates pollutants going from a “point source” into “navigable waters”, does it matter that the groundwater is the intermediary? Both the Hawaii District Court and the Ninth Circuit said it does not.[vii]
The district court, at summary judgment, held that the county violated the CWA by discharging effluent through groundwater and into the ocean without the required permit and that the County had fair notice of its violations.[viii] The County appealed and the Ninth Circuit affirmed, with the Court stating, “The County could not under the CWA build an ocean outfall to dispose of pollutants directly into the Pacific Ocean without an NPDES permit. It cannot do so indirectly either to avoid CWA liability. To hold otherwise would make a mockery of the CWA’s prohibitions.”[ix] Now at the Supreme Court, this case will ultimately decide if the CWA regulates pollutants discharged from a point source into groundwater with the potential of entering navigable waters of the U.S.
After the Supreme Court granted certiorari, a coalition of breweries, mostly small local businesses, wrote an amicus brief. In the brief they argue that if the county’s argument prevails, it will set a precedent that will allow for the pollution of countless brewing facilities across the nation by allowing counties to contaminate the water used to make beer, and therefore hurting their businesses.
The County of Maui and its amici argue that a permit should not be required for pollutants that are conveyed to navigable waters but originate from a point source.[x] If this argument were to set the standard, the water that countless breweries as well as many other industries rely on would render their livelihoods nonoperational. The amici make many persuasive arguments for why the Court should not rule in favor of the County of Maui, intertwining the business, environmental, and procedural implications such a ruling would have.
Their foremost argument is that in support of Hawaii Wildlife Fund, that there is strong judicial and regulatory precedent that the CWA can apply to groundwater as an intermediary between sources.[xi] But more specifically to craft brewery industry, which comprises a quarter of the total beer industry, the ruling could disrupt their one hundred billion dollar industry.[xii] Since beer is predominantly water and even the smallest chemicals can change its taste, shelf life, and consistency, water quality has a direct impact on the brewing business.[xiii] Without the CWA’s current regulatory recruitments, brewers’ product and profitability cannot be maintained.[xiv]Therefore, beyond this case’s vital environmental impacts, the economic impacts should not be overlooked.
The brewers here might have a private cause of action through a citizens suit, but the issues they raise go beyond this case. If the Supreme Court were to rule in favor of the County, it would become exponentially easier to evade the standards set by the CWA. Not only would this affect the craft brewing industry, and even the beer industry as a whole, but any industry that relies on clean water for drinking, making products, or for recreation. The economic impact of this is immense; beyond just the effect to these business and the product themselves, a lack of regulation could also affect the tourism that is driven by such businesses as well.
An unassuming brief from a few unlikely players in the legal world, has hit on an issue that has the potential to broaden the environmental coalition. By framing the CWA in economic terms, the brewers have tapped into a way to appeal to people who may lack the nuanced knowledge environmental laws require as well as those who are often on the other side of environmental issues. The CWA does not have a Congressional mandate to balance economics and environmental health as the Clean Air Act does. However, this crafty argument should not be overlooked in the future—by those arguing before a court or before the public in fighting for the environment.
* Makayla Lopez is a Junior Editor on MJEAL. She can be reached via email at email@example.com.
The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.
[i] Melissa Lyttle, The Clean Water Case of the Century, EarthJustice Blog, (Nov. 14, 2019) https://earthjustice.org/features/supreme-court-maui-clean-water-case.
[vi] 33 U.S.C.S. § 1311.
[vii] Melissa Lyttle, The Clean Water Case of the Century, EarthJustice Blog, (Nov. 14, 2019) https://earthjustice.org/features/supreme-court-maui-clean-water-case
[viii] Hawai’i Wildlife Fund v. Cty. of Maui, No. 12-00198 SOM/BMK, 2015 U.S. Dist. LEXIS 8189 (D. Haw. Jan. 23, 2015)
[ix] Hawai’i Wildlife Fund v. Cty. of Maui, 881 F.3d 754, 768 (9th Cir. 2018).
[x] Cty of Maui v. Hawai’i Wildlife Fund, 2019 U.S. S. Ct. Briefs Lexis 2705.
[xi] Id. at 13
[xii] Id. at 21.