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Environment & Energy Report

Maui Mayor Won’t Settle Clean Water Act Case at Supreme Court

Oct. 21, 2019, 1:13 PM

A local dispute that could derail an environmental case at the Supreme Court is no closer to resolution just weeks before oral arguments.

Maui Mayor Michael Victorino on Oct. 18 confirmed he doesn’t intend to follow through on a legal settlement that local lawmakers recently approved for County of Maui v. Hawai’i Wildlife Fund, a major case focused on the scope of the Clean Water Act.

“This issue must be clarified once and for all, not re-litigated endlessly at county taxpayers’ expense,” he said. “Plaintiffs chose federal courts to file suit against Maui County in 2012. If their case has merit, they should welcome having it heard by the Supreme Court.”

Victorino has previously voiced opposition to settling the case, which involves wastewater injection wells on the Hawaiian island, but he hadn’t announced a final decision until the Oct. 18 letter.

His announcement is the latest development in a high-stakes feud that will determine whether the Supreme Court ultimately decides the case, which is scheduled for oral arguments Nov. 6.

Earthjustice attorney David Henkin, who is representing Maui environmental groups in the legal challenge over the injection wells, said he was disappointed in Victorino’s decision to push the case forward.

“It’s unfortunate that the Mayor has chosen to side with the Trump Administration and the nation’s worst polluters, rather than listen to the will of the people of Maui, who spoke out overwhelmingly in favor of settling the case and focusing on addressing the harm the Lahaina injection wells are inflicting on Maui’s priceless coral reef every day,” Henkin said in an email.

He added that the environmental groups are ready for the Supreme Court showdown.

“We are prepared to head to the Supreme Court on November 6 and defend clean water for Maui and the nation,” he said. “We are confident justice will prevail at the Supreme Court in favor of clean water protection, and not the right to pollute.”

Who Decides?

At issue is whether the Clean Water Act’s permitting program applies to pollution that moves through state-controlled groundwater before reaching the federally regulated Pacific Ocean. The question has implications for water permitting across the country.

Environmentalists argued that the county broke the law by not having Clean Water Act permits for Pacific pollution linked to its wastewater disposal wells. A lower court agreed, and the county took the issue to the Supreme Court.

The Maui County Council on Sept. 20 voted to withdraw the appeal.

Council leaders maintain they have authority over the issue and say Victorino must follow the council’s direction to settle the case. But county lawyers, who represent both the mayor and the council, say the mayor gets to make the final decision.

Chairwoman Kelly T. King and Vice Chairwoman Keani Rawlins-Fernandez have introduced proposals that would authorize hiring new lawyers to represent the council in the dispute with the mayor’s office, and would specify that lawyers serving as special counsel for the county must answer to the lawmaking body.

The council plans to consider the proposals in an Oct. 29 meeting, eight days before the Supreme Court is scheduled to hear oral arguments.

The parties can still settle and withdraw the case after oral arguments—at any point before a decision is issued.

The case is County of Maui v. Hawai’i Wildlife Fund, U.S., No. 18-260.

To contact the reporter on this story: Ellen M. Gilmer in Washington at egilmer@bloombergenvironment.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com; Rob Tricchinelli at rtricchinelli@bloombergenvironment.com