Argument Analysis: Context Trumps Text as Justices Debate Reach of Clean Water Act

by Lisa Heinzerling

November 11, 2019

This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US). Click here to read Professor Heinzerling's argument preview for this case.

The Clean Water Act requires a permit for the addition to the navigable waters of any pollutant that comes “from any point source.” Last Wednesday, the Supreme Court examined this clause during oral argument in County of Maui, Hawaii v. Hawaii Wildlife Fund. The question in this case is whether a permit is required for pollutants that originate from a point source but travel through groundwater before reaching a navigable water.

The textual crux of the case is the word “from”: Does “from” mean that a pollutant must be directly delivered to a navigable water by a point source or that a pollutant must merely originate at a point source?

If “from” means the former, the County of Maui wins, because the millions of gallons of treated sewage it discharges into its underground wells run through groundwater before reaching the Pacific Ocean. If it means the latter, the environmental groups win, because the treated sewage originates from the county’s wells, and all agree that these wells are point sources under the statute.

At oral argument yesterday, the justices appeared to find little purchase in the bare word “from.” Justice Brett Kavanaugh was most explicit on this point. He suggested that both sides have good arguments about the meaning of “from,” and asked counsel for both parties how to break the tie. “What then,” he asked, “should we look at to help us decide how to interpret it?”

Not long ago, when faced with an ambiguous statutory term, the court would have broken the linguistic tie by turning deferentially to the interpretation embraced by the agency charged with implementing the statute. While the petition for certiorari was pending in this case, the Environmental Protection Agency issued an interpretive statement asserting for the first time that discharges into groundwater are categorically excluded from the Clean Water Act’s permitting requirement. Arguing on behalf of the United States as an amicus, Deputy Solicitor General Malcolm Stewart urged the court to adopt the EPA’s interpretation, but conspicuously did not ask the court to defer to it. No justice questioned the fine line drawn by this position or even hinted at the possibility of deference.

Elbert Lin, arguing for the County of Maui, offered statutory context as an alternative means to break the tie. He stressed that the structure of the Clean Water Act contemplates separate frameworks for regulating point-source and nonpoint-source water pollution, and he argued that the environmental groups’ reading would leave no “meaningful role for the nonpoint source program.” He also pointed to the substantial daily civil penalties that may be imposed for unpermitted discharges and the importance of before-the-fact clarity as to which dischargers must apply for a permit. “This is a … permitting program,” he emphasized on rebuttal, “that applies to ordinary lay people and would require $50,000 a day in fines.” He argued that the “after-the-fact” analysis of the traceability test, which asks whether the pollutant can be fairly traced from a navigable water back to the point source, applied by the U.S. Court of Appeals for the 9th Circuit and pressed by the environmental groups, is too unpredictable to serve as a plausible trigger for the Clean Water Act’s permitting requirement.

Some justices worried that Lin’s own test, requiring a permit only when a point source directly conveys pollutants to the navigable waters, would allow unacceptable evasions of the permitting system. Justice Stephen Breyer observed that this test would offer “an absolute road map for people who want to avoid the point source regulation”; “just cut off … the pipes or whatever, five feet from the ocean,” he suggested, and no permit would be required. He suggested that perhaps a test that asked whether a discharge was “the functional equivalent of a direct discharge” would work better. Chief Justice John Roberts noted that under the government’s categorical exclusion for discharges into groundwater, “any little bit of groundwater” between a point source and navigable water – even “two inches” – would break the causal chain required for a permit. Justice Elena Kagan suggested that the message to dischargers implied by the government’s position was simply to “put your pipe underground” and thereby avoid having to apply for a permit.

David Henkin, arguing for the environmental groups, faced judicial anxiety from the other direction. The justices tried to find a limiting principle for the groups’ traceability test that would avoid ensnaring a great many small sources in the Clean Water Act’s permitting program. Here, the nightmare example for the justices was, as Justice Samuel Alito put it, “the ordinary family out in the country that has a septic tank” but not “a lot of money,” and therefore uses a “cheap” but “shoddy” installer for the tank. Alito – along with Roberts, Breyer, Kavanaugh and Justice Neil Gorsuch – expressed deep concern about the plight of this hypothetical landowner whose septic-tank contents might find their way into a navigable water, and seemed to find little comfort in the environmental groups’ traceability and proximate-cause tests.

Roberts dismissed traceability as a “technological issue,” dependent on the sophistication of tracing instruments and not “a significant limitation” on the permitting requirement. He panned the groups’ other limitation on permitting – proximate cause – as “notoriously manipulable.” He wondered aloud what Breyer’s alternative test of functional equivalence meant. Gorsuch observed that “water runs downhill, and gravity tends to work its wonders with water,” so that it is foreseeable that pollution from a septic tank will “wind up in the waters of the United States.” Breyer piled on, saying “virtually every little drop of rain that falls finds its way to the sea” and that scientists are “geniuses” who “can trace all kinds of things.” He conceded that this was an overstatement – “but not by too much.” Kavanaugh added “a massive increase in the permitting program,” the availability of citizen suits and “transforming the federal/state balance” to the list of contextual factors that might help illuminate the question posed by the text of the statute.

Henkin strove mightily to return the case and the permitting program to the actual facts involved: a large wastewater treatment plant that daily adds millions of gallons of treated sewage to the Pacific Ocean and a permitting requirement that, so far as Henkin could recall, has never been invoked in a citizen suit against an individual septic-tank owner.

Yesterday, however, the hypotheticals – septic tanks, toilets, single-family homes, and sawed-off pipes – were what captured the justices’ attention.

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Lisa Heinzerling is a Professor of Law at Georgetown University. 

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