Today, the Supreme Court ruled, 6-3, that the Clean Water Act requires a permit when a point source of pollution adds pollutants to navigable waters through groundwater, if this addition of pollutants is "the functional equivalent of a direct discharge" from the source into navigable waters. Because the U.S. Court of Appeals for the 9th Circuit applied a different legal test in determining that a permit was required for a sewage treatment facility operated by the County of Maui, the Supreme Court vacated the 9th Circuit's judgment and remanded the case for application of the standard announced today.
Perhaps the most striking feature of Justice Stephen Breyer's opinion for the majority – which drew the votes of Chief Justice John Roberts and Justice Brett Kavanaugh, as well as those of Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan – is its interpretive method. The opinion reads like something from a long-ago period of statutory interpretation, before statutory decisions regularly made the central meaning of complex laws turn on a single word or two and banished legislative purpose to the interpretive fringes.
Breyer put legislative purpose front and center in concluding that the interpretations offered by the County of Maui and the solicitor general would open a "large and obvious loophole in one of the key regulatory innovations of the Clean Water Act," and allow "easy evasion of the [relevant] statutory provision's basic purposes." In describing the legal basis of the court's ruling, Breyer twice placed the statute's "purposes" as equal partners alongside "language" and "structure." On this deeply textualist court, any reference to statutory purpose can draw a partial nonconcurrence, or even a dissent, from textualist justices. Today, however, Breyer's invocation of legislative purpose – and even a brief discussion of legislative history! – went unchallenged by the five other justices who embraced his test for determining the reach of the Clean Water Act's permitting requirement where discharges to groundwater are involved. (Kavanaugh joined the court's opinion "in full," but filed a concurring opinion mostly highlighting his agreement with Justice Antonin Scalia's plurality opinion in Rapanos v. United States, narrowly construing the "waters of the United States" protected by the Clean Water Act.)
Even Chevron deference, the doctrine requiring courts to defer to an administrative agency's reasonable interpretation of an ambiguous statute – forcefully criticized by conservative justices in recent years and described by Breyer, amusingly circuitously, as "what the Court has referred to as Chevron deference" – made a brief appearance in the majority opinion. Breyer noted that "neither the Solicitor General nor any party" had asked the court to defer to the Environmental Protection Agency's recent "Interpretive Statement," which opined that all releases of pollutants to groundwater are categorically excluded from the Clean Water Act's permitting program. "Even so," Breyer went on, the court "often pay[s] particular attention to an agency's views in light of the agency's expertise in a given area, its knowledge gained through practical experience, and its familiarity with the interpretive demands of administrative need." Here, however, Breyer explained, EPA's interpretation was "neither persuasive nor reasonable," given the escape hatch it would pry open in the Clean Water Act's permitting provisions.
Once he had rejected, as "too extreme," the alternative tests offered by the lower court, the litigants in the Supreme Court and his dissenting colleagues, it fell to Breyer to explain just what he meant by "the functional equivalent of a direct discharge" to navigable waters. He candidly acknowledged that his approach "does not, on its own, clearly explain how to deal with middle instances." He offered a list of "just some of the factors that may prove relevant," seven in all, including "transit time," "distance traveled" and other facts about the journey of the pollution from a point source to the navigable waters. "Time and distance," he emphasized, "will be the most important factors in most cases, but not necessarily every case." In making these judgments, Breyer emphasized, "[t]he objective … will be to advance, in a manner consistent with the statute's language, the statutory purposes that Congress sought to achieve."
Breyer appeared optimistic that the courts, EPA and the states can administer the new test without too much difficulty. The courts, he noted, can "provide guidance through decisions in individual cases" – and even, "in an era of statutes," make use of the "traditional common-law method, making decisions that provide examples that in turn lead to ever more refined principles." EPA can "provide administrative guidance (within statutory boundaries)," through individual permits, general permits or general rules. EPA and the states can avoid the prospect of greatly expanded permitting requirements through various permitting techniques, and courts can apply the Clean Water Act's penalty provision with sensitivity toward the reasonable expectations of those potentially ensnared by the court's new permitting test.
What emerges from all this is a vision of Congress, the executive branch, the courts and the states working together to protect the waters of the United States while keeping the program within manageable bounds. In this way, too, perhaps, Breyer's opinion is a happy throwback to earlier times.
Justice Clarence Thomas dissented, joined by Justice Neil Gorsuch, and Justice Samuel Alito issued his own dissent. Both dissents embraced the same test, requiring a permit only "when a point source discharges pollutants directly into navigable waters." (This exact verbal formulation of the test appears in both dissents.) Thomas rested his argument on statutory text and structure, faulting the court for speculating about Congress' intent: "Our job," he reminded his colleagues, quoting from a recent opinion, "is to follow the text even if doing so will supposedly undercut a basic objective of the statute."
Alito's solo dissent is well summarized by his opening line: "If the Court is going to devise its own legal rules, instead of interpreting those enacted by Congress, it might at least adopt rules that can be applied with a modicum of consistency."
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Lisa Heinzerling | April 24, 2020
On April 23, 2020, the Supreme Court ruled, 6-3, that the Clean Water Act requires a permit when a point source of pollution adds pollutants to navigable waters through groundwater, if this addition of pollutants is "the functional equivalent of a direct discharge" from the source into navigable waters. Perhaps the most striking feature of Justice Stephen Breyer's opinion for the majority is its interpretive method. The opinion reads like something from a long-ago period of statutory interpretation, before statutory decisions regularly made the central meaning of complex laws turn on a single word or two and banished legislative purpose to the interpretive fringes.
Darya Minovi | April 23, 2020
On Earth Day, the Environmental Integrity Project (EIP), a CPR ally, released a new report on nitrogen pollution from poultry operations in the Chesapeake Bay watershed. Using data from the Chesapeake Bay Program’s pollution modeling program, EIP found that approximately 24 million pounds of nitrogen pollution from the poultry industry entered the Chesapeake Bay’s tidal waters in 2018. That's more than from urban and suburban stormwater runoff in Maryland and Virginia combined, and it can contaminate drinking water sources of nearby communities and feed huge algal blooms in the Bay that block sunlight, choking off fish and plant life.
Michael C. Duff | April 21, 2020
With COVID-19 cases contracted at work on the rise, labor and employment attorneys, businesses, advocates, and workers are all wondering if their state’s workers’ compensation law will apply, and alternatively, if an ill worker could file a lawsuit against their employer. The answers to these questions are not simple, as workers’ compensation laws vary by state, and when it comes to occupational diseases, the applicability of workers’ comp is often even more complicated. In a recent post on Workers’ Compensation Law Prof Blog, CPR Member Scholar Michael Duff discusses the so-called workers’ compensation “grand bargain,” under which workers receive no-fault benefits for work-related injuries and illnesses in exchange for giving up their right to file a lawsuit against their employer. In his post, Duff explores the circumstances in which a worker who has contracted COVID-19 at work may still have the right to file a lawsuit (getting around the “exclusivity bar”), as illustrated by a recently filed wrongful death case in Illinois, Evans v. Walmart. In this case, plaintiffs argue that two Walmart employees, Wando Evans and Phillip Thomas, passed away due to complications from COVID-19 contracted while working for the big box retailer.
Brian Gumm | April 21, 2020
On April 17, CPR Board President Rob Verchick joined EPA enforcement chief Susan Bodine and other panelists for an American Bar Association webinar on environmental protections and enforcement during the COVID-19 pandemic. During the event, Bodine expressed "surprise" that the agency's pandemic enforcement policy was so roundly criticized, but she shouldn't have been caught off guard by those critiques. As Verchick noted during the discussion, "The problem with [weakening monitoring and pollution reporting requirements] is that fenceline communities have no idea where to look. They have no idea if the facilities in their backyards are…taking a holiday from pollution requirements or not."
Katie Tracy | April 20, 2020
As the coronavirus pandemic wears on, reports abound of essential frontline workers laboring without such basic protective gear as masks, gloves, soap, or water; with improper distancing between workstations and coworkers; and in workplaces alongside infected colleagues. So far, nearly 4,000 workers have filed complaints with the federal Occupational Safety and Health Administration (OSHA), raising concerns about health and safety conditions inside the workplace. Yet the agency has been largely absent at a time it is most needed. Shamefully, as COVID-19 illnesses rise in slaughterhouses, grocery stores, hospitals, and other worksites across the nation, the agency has chosen to go against its very mission of protecting America’s workers, ignoring calls to adopt emergency standards and rolling back its enforcement efforts.
Matthew Freeman | April 17, 2020
On April 14, CPR's James Goodwin took part in a virtual hearing, hosted by the Union of Concerned Scientists, on the EPA's "censored science" rule, an effort by EPA to exclude from its rulemaking process a range of scientific studies that industry finds uncongenial to its anti-regulatory views. In his testimony, Goodwin dismantles EPA's contention that the rule is grounded in law, observing that there are no credible legal underpinnings for the proposal.
Daniel Farber | April 17, 2020
During the coronavirus crisis, Dr. Anthony Fauci has become the voice of reason. Much of the public turns to him for critical information about public health while even President Trump finds it necessary to listen. In the Trump era, no one plays that role in the environmental arena. The result is a mindless campaign of deregulation that imperils public health and safety. We can't clone Dr. Fauci or duplicate the unique circumstances that have made his voice so powerful. However, we can do several things that would make it harder for administrations to ignore science.
Darya Minovi | April 16, 2020
On April 29, the Center for Progressive Reform (CPR) will host a webinar to discuss the public health and policy implications of COVID-19 and to highlight the many policy parallels between the pandemic and climate change. Speakers include Daniel Farber, JD, of UC Berkeley (and a CPR Member Scholar); Monica Schoch-Spana, PhD, of the Johns Hopkins Bloomberg School of Public Health; and Aaron Bernstein, MD, MPH, of Boston Children’s Hospital and the Harvard Medical School. Join us!
Laurie Ristino | April 15, 2020
Americans are experiencing a tidal wave of food insecurity related to the coronavirus pandemic. Historic unemployment claims and surging demand at food banks are laying bare the precarious circumstances of many of our citizens and the inadequacy of our social safety net. We can learn from the coronavirus epidemic--and we must in order to prevent human suffering in the future. Taking stock and then reforming our policies should start now while legislative momentum is possible--not after the country has moved past the apex of the disease. In a recent episode of the podcast, Good Law/Bad Law, Laurie Ristino joined host Aaron Freiwald to discuss the vital connection between the 2018 Farm Bill, the pandemic, and the startling food insecurity so many Americans are now facing.