In April, the U.S. Supreme Court finally weighed in with an answer to a longstanding question about what kinds of pollution discharges rise to the level of a "point source" and require a permit under the Clean Water Act. The Court dipped its toes into some muddied waters, as this question has been the subject of a range of decisions in the lower courts for decades, with little consensus. Panelists on the Center for Progressive Reform's May 28 clean water webinar examined the Supreme Court's opinion and its possible implications for water quality protections.
The Clean Water Act prevents the addition of any pollutant to any navigable water of the United States from any so-called "point source" – a fixed point, as in, for example, the end of a pipe discharging into a river – without a National Pollutant Discharge Elimination System (NPDES) permit. Generally speaking, the EPA is on the hook to regulate such point-source pollutants, and states are generally responsible for regulating discharges from nonpoint sources. But what about discharges from point sources into non-navigable waters, like groundwater, that ultimately flow into navigable waters, like the Pacific Ocean?
That is exactly what County of Maui, Hawaii v. Hawaii Wildlife Fund set out to answer. In this case, the County of Maui had used four injection wells, located about a half a mile from the Pacific Ocean, to dump roughly 4 million gallons of treated sewage a day into groundwater (see image above). The treated sewage ultimately made its way into the ocean and was wreaking havoc on nearby water quality and coral reefs (see image below).
In a 6-3 opinion written by Justice Stephen Breyer, the Court held that a NPDES permit is required when "there is a direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge" – or, "when a point source directly deposits pollutants into navigable waters, or when the discharge reaches the same result through roughly the same means."
As discussed on the May 28 webinar, the Hawaiian environmentalists who originally brought this case waged a 12-year battle in court to ensure that sewage discharged into the Pacific Ocean was subject to a NPDES permit. While the case was remanded back to the lower courts, the ruling was considered a big win for ensuring a more scientific approach to the Clean Water Act's coverage and confirming that industry or state and local governments can't circumvent the law by pumping pollution into groundwater before it's discharged into surface waters.
The webinar, which featured Hannah Bernard of the Hawaii Wildlife Fund; David Henkin of Earthjustice; and CPR Member Scholars Amanda Leiter, Steph Tai, and Rob Verchick, also touched on the legal and policy issues at stake in the case and what the decision might mean for the future of Clean Water Act regulation, permitting, and litigation.
You can watch a recording of the webinar below or on our YouTube channel.
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Katlyn Schmitt | June 2, 2020
In April, the U.S. Supreme Court finally weighed in with an answer to a longstanding question about what kinds of pollution discharges rise to the level of a "point source" and require a permit under the Clean Water Act. The Court dipped its toes into some muddied waters, as this question has been the subject of a range of decisions in the lower courts for decades, with little consensus. Panelists on the Center for Progressive Reform's May 28 clean water webinar examined the Supreme Court's opinion and its possible implications for water quality protections.
James Goodwin | June 1, 2020
It is now beyond debate – or at least it should be – that we, the people of the United States, have been failed by the Trump administration and its conservative apologists in Congress in their response to the COVID-19 pandemic. They failed to put in place mechanisms for systematic testing and contact tracing. They failed to coordinate the efficient acquisition of essential medical equipment such as ventilators and personal protective equipment. They failed to provide for an orderly phase-down of non-essential economic activity. They failed to establish clear, enforceable safety standards protect consumers, workers, and their families engaged in essential economic activity. This stopped being a public health crisis a long time ago. The pandemic is now more fairly characterized as a crisis of government. Fortunately, our democracy has a crucial safety valve that stands ever ready to kick in when our representatives fail to protect us: the civil courts.
Alice Kaswan, Amy Sinden, Brian Gumm, Catherine Jones, Darya Minovi, David Flores, James Goodwin, Joel A. Mintz, Katie Tracy, Katlyn Schmitt, Matt Shudtz, Matthew Freeman, Robert L. Glicksman, Robert Verchick, Sidney A. Shapiro, Thomas McGarity | June 1, 2020
Staff and Board members of the Center for Progressive Reform (CPR) denounce the murder of George Floyd by Minneapolis police officer Derek Chauvin on Memorial Day. We stand with the peaceful protestors calling for radical, systemic reforms to root out racism from our society and all levels of our governing institutions and the policies they administer. CPR Member Scholars and staff are dedicated to listening to and working alongside Black communities and non-Black people of color to call out racism and injustice and demand immediate and long-lasting change. Racism and bigotry cannot continue in the United States if our nation is to live up to its creed of life, liberty, and the pursuit of happiness for all.
Dave Owen, Katlyn Schmitt | May 28, 2020
Sometime soon, EPA is expected to release its final rule limiting state and tribal authority to conduct water quality certifications under section 401 of the Clean Water Act. A water quality certification is the most important tool states have to ensure that any federally permitted project complies with state water quality protections.
Samuel Boden | May 27, 2020
On May 19, the National Weather Service advised people living near the Tittabawassee River in Michigan to seek higher ground immediately. The region was in the midst of what meteorologists were calling a “500-year-flood,” resulting in a catastrophic failure of the Edenville Dam. Despite years of warnings from regulators that the dam could rupture, its owners failed to make changes to reinforce the structure and increase spillway capacity. By the next day, the river had risen to a record-high 34.4 feet in the city of Midland.
Michael C. Duff | May 21, 2020
A recent, interesting lawsuit filed against McDonald's, in Cook County, Illinois, suffers from few of the deficiencies that I have identified in prior postings about public nuisance cases related to COVID-19. The named employee-plaintiffs allege "negligence" in what might look at first blush like a drop-dead workers' compensation case. This time, however, there is a wrinkle.
Darya Minovi, James Goodwin | May 20, 2020
Earlier this week, we submitted a public comment to the Environmental Protection Agency (EPA), criticizing the agency's March 2020 supplemental proposal for its “censored science" rulemaking. This rule, among other things, would require the public release of underlying data for studies considered in regulatory decision-making, and thus might prevent the agency from relying on such seminal public health research as Harvard’s Six Cities study, which have formed the backbone of many of the EPA’s regulations, simply because they rely on confidential data.
Alejandro Camacho, Robert L. Glicksman | May 20, 2020
Much of the discussion of the Trump administration's failed handling of the COVID-19 pandemic has focused on its delayed, and then insufficiently urgent, response, as well as the President's apparent effort to talk and tweet the virus into submission. All are fair criticisms. But the bungled initial response—or lack of response—was made immeasurably worse by the administration's confused and confusing allocation of authority to perform or supervise tasks essential to reducing the virus's damaging effects. Those mistakes hold important lessons.
Katie Tracy | May 19, 2020
The Occupational Safety and Health Administration's (OSHA) Whistleblower Protection Program (WPP) plays a vital role in protecting workers from employers who cut corners on safety or who violate other federal laws: It protects those workers who report such abuses from retaliation, making it harder for employers to get away with breaking the law. Or at least that's how it's supposed to work. The 23 separate federal statutes the program encompasses cover a wide range of corporate wrongdoing, including violations of clean air and drinking water standards, food safety standards, workplace health and safety standards, and much more. If an employer retaliates against an employee for taking any of the actions covered by these laws, the employee may file a retaliation complaint with OSHA for investigation.