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Supreme Court’s Questions Could Scramble Strategy in Water Case

Nov. 8, 2019, 10:01 AM

Unexpected dynamics in a Nov. 6 Supreme Court oral argument might add pressure for parties to settle a high-stakes water pollution case, but the mayor of the Hawaii county involved in the dispute says that’s not an option.

Several of the court’s conservative-leaning justices asked questions during the argument that indicate they may not see the litigation through a strictly ideological lens.

The case, County of Maui v. Hawai’i Wildlife Fund, asks whether Clean Water Act permits are required for pollution that passes through groundwater or another intermediary before reaching a federal waterway.

Outside observers and lawyers supporting both sides said they initially thought Maui County—which is pushing the justices for a narrow interpretation of the Clean Water Act—had an upper hand before the court. But they left arguments feeling less certain.

“Coming out of that argument, I would not in any way be as confident perhaps as I might have been going in,” former Justice Department environmental lawyer Larry Liebesman, now a senior adviser at Dawson & Associates, said of Maui’s lawyers.

‘Little Financial Downside’

Harvard Law School professor Richard J. Lazarus said “it’s no longer a sure thing” the court will side with the county, a dynamic that might pressure Maui’s mayor to revisit a settlement plan he previously rejected.

Referring to the law firm representing the county, he said, “If I were counsel for [Hunton] Andrews Kurth right now, I’d at least owe my client a phone call.”

But Maui Mayor Michael Victorino, who in October blocked a settlement plan approved by the county council, said he’s not reconsidering his approach.

“It’s not about a win or a loss,” Victorino said in a statement to Bloomberg Environment. “We hope the Court fashions a clear test that we and other regulated entities and property owners can understand and abide by.”

‘Having a Conversation’

Victorino is likely to face increased pressure from industry attorneys who are now apprehensive about what the court might do, Lazarus said.

A ruling against Maui County could mean stricter permitting requirements for factories, sewage treatment plants, and other businesses that dispose of wastewater and other pollutants.

“My guess is there are a bunch of industry lawyers subject to Clean Water Act jurisdiction who are now having a conversation about whether they want to tell the mayor to change his mind,” Lazarus said during a Nov. 6 Georgetown University Law Center panel discussion after the arguments.

Chesapeake Bay Foundation attorney Peggy Sanner, whose group supports environmentalists in the case, said “it’s a very common practice” for parties to settle a case after appearing in court.

“The moment after oral argument in any case is the moment for litigating parties to think about what their best options are,” she said.

Other Cases

Even if the case settles, the Supreme Court still has options for resolving the Clean Water Act question at the heart of the dispute.

The justices have a similar case on hold that centers on a pipeline rupture in South Carolina.

That dispute involves different circumstances and procedural complexities, prompting the Trump administration to warn the Supreme Court against using the case to address the water permitting issue.

The pollution-via-groundwater issue has also cropped up in lower-court cases that could make their way up to the justices in a future term.

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

To contact the reporters on this story: Ellen M. Gilmer in Washington at egilmer@bloombergenvironment.com; David Schultz in Washington at dschultz@bloombergenvironment.com

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