Over and under image of Green Sea Turtle off Olowalu, Maui
Tor Johnson | Moment | Getty Images
The Supreme Court seemed skeptical of the Trump administration's interpretation of the Clean Water Act during oral arguments in a major environmental law case on Wednesday.
The case concerns whether polluters must obtain federal permits for dumping pollutants indirectly into the nation's oceans and streams, via groundwater, or whether they must only do so for pollutants that enter such waters directly.
The court's four liberals seemed disinclined to agree with arguments put forward by the Trump administration and the county of Maui that indirect pollution should not require Clean Water Act permits.
The court's conservatives appeared split on the matter, though Chief Justice John Roberts and Justice Brett Kavanaugh indicated they may side with environmentalists who argued that allowing such indirect pollution would effectively carve out a wide loophole in the landmark regulation.
Though the dispute in the case seems like a technical distinction, forces on both sides have said the consequences of a ruling against them could be dire.
Business groups argue that requiring a permit for indirect pollution could harm agricultural producers, while environmentalists say that not doing so will upset decades of precedent that have kept the nation's waterways clean.
Also at issue during arguments was whether the position put forward by the environmentalists, represented by Earthjustice staff attorney David Henkin, could saddle unwitting homeowners with steep fines brought on by shoddy septic tanks.
The case arose in 2012 when a collection of environmentalists sued the county of Maui over a wastewater treatment facility on the island that injects millions of gallons of treated waste each day deep into the ground. An EPA-ordered study showed that nearly all of that treated waste ultimately ends up in the Pacific Ocean.
For much of the argument, the justices pressed both Maui and the Trump administration on the possible circumstances in which a business could pollute the nation's waters without needing a permit.
Justice Stephen Breyer, one of the court's Democratic-appointees, asked Maui's attorney Elbert Lin why a polluter would not simply drop pollutants five feet from the water's edge. Lin responded that while doing so could avoid federal regulation, "there are laws, including in Hawaii," that might prevent it.
In a back-and-forth with deputy solicitor general Malcolm Stewart, who was arguing in support of Maui, Roberts pressed for a limit to the government's argument. He asked if "any little bit" of groundwater between the facility and the ocean would make a permit unnecessary.
"Two inches?" he asked.
Stewart said that was the case, though he did not believe such a situation was realistic.
The case is County of Maui, Hawaii v. Hawaii Wildlife Fund, et al. No. 18-260.
This is breaking news. Check back for updates.
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