The Supreme Court Clears the Water of Hawaiian Shi(r)ts

The State of Hawaii brings to mind images of stunning natural beauty, pristine beaches, and its eponymous colorful shirts. Yesterday’s Supreme Court decision, however, addressed an odorous Hawaiian reality: the multi-million-gallon daily discharge of chemically treated sewage sludge into ground water and the Pacific Ocean.

The question presented by County of Maui, Hawaii v. Hawaii Wildlife Fund, et al. is straight-forward: “The Clean Water Act forbids “any addition” of any pollutant from “any point source” to “navigable waters” without an appropriate permit from the Environmental Protection Agency (EPA).” In this case, “Petitioner County of Maui’s wastewater reclamation facility collects sewage from the surrounding area, partially treats it, and each day pumps around 4 million gallons of treated water into the ground through four wells. This effluent then travels about a half mile, through groundwater, to the Pacific Ocean. Respondent environmental groups brought a citizens’ Clean Water Act suit, alleging that Maui was “discharg[ing]” a “pollutant” to “navigable waters” without the required permit. The District Court found that the discharge from Maui’s wells into the nearby groundwater was “functionally one into navigable water,” 24 F. Supp. 3d 980, 998, and granted summary judgment to the environmental groups. The Ninth Circuit affirmed, stating that a permit is required when “pollutants are fairly traceable from the point source to a navigable water.” 886 F. 3d 737, 749.” 

Maui and the US Solicitor General (the Administration changed its position after the 2016 elections) argued that only direct discharge into “navigable waters” (river, ocean, etc.) requires EPA permit, whereas here the discharge passes through groundwater before reaching the Pacific Ocean. In fact, the current EPA’s relevant Interpretive Statement states that “all releases of pollutants to groundwater” don’t require permit “even where pollutants are conveyed to jurisdictional surface waters via groundwater.”

The EPA’s position, simply stated, is that only direct discharge of pollutants into a river or an ocean requires a permit. If there’s any separation—a pipe, a field, a drainage channel, a bird’s beak—polluters are in the clear. As to groundwater? Go ahead, pollute at will, no problem.

Reading this case, one might mistakenly assume that the acronym EPA stands for the Environmental Pollution Agency.

Justice Breyer, writing for the majority, explained at length why Congress surely didn’t intend to create a meaningless permit process that could be circumvented easily by discharging harmful pollutants “indirectly” into navigable waters or directly into groundwater. Rather, Congress intended to protect our water from anything amounting to “the functional equivalent of a direct discharge.”

What does “functional equivalent” mean?

According to Justice Breyer, “Many factors may be relevant to determining whether a particular discharge is the functional equivalent of one directly into navigable waters. Time and distance will be the most important factors in most cases, but other relevant factors may include, e.g., the nature of the material through which the pollutant travels and the extent to which the pollutant is diluted or chemically changed as it travels. Courts will provide additional guidance through decisions in individual cases.”

A dissenting opinion by Justice Thomas, joined by Justice Gorsuch, mocks this “functional equivalent” standard as vague and impractical, reminding the Court that “we are not a super-legislature (or super-EPA) tasked with making good policy—assuming that is even what the Court accomplishes today. “Our job is to follow the text even if doing so will supposedly undercut a basic objective of the statute.” (Quoting Baker Botts L. L. P. v. ASARCO (2015)

In summary, County of Maui, Hawaii v. Hawaii Wildlife Fund, et al.  seems to deliver a compromise decision by a conflicted, stitched-up majority, creating yet another amorphous standard to which both environmentalists and polluters may pin their future arguments. I expect lower-court judges, while muddling through the next wave of water-pollution cases, will bemoan this decision for creating the “functional equivalent” of a legal standard, rather than a clear one. Time will tell.

Avraham Azrieli www.AzrieliBooks.com 

The Supreme Court’s Verbose Silence on Religious Speech by Avraham Azrieli

Most Americans aspire for a Supreme Court built as a hallowed tower of legal wisdom, fairness, and neutrality. This fading construct, however, has been buffeted in recent decades by jarring public spectacles, as each new appointee suffered a grueling, vicious, and occasionally seedy confirmation process. Unlike the Congress and the presidency, the public still approves of the Supreme Court, though by a declining majority, while disapproval ratings have surpassed 40%, almost doubling in the last two decades. Most ominously for the Court’s future standing, opinion polls consistently show that a majority believes the justices decide cases based on their personal political views, rather than the law. Ironically, on April 6, 2020, the Court reinforced this negative view by publishing a needless statement in a case it declined to hear.

Other than dedicated Supreme Court observers, few Americans realize that the Supreme Court hears only 4% of the cases submitted for its review. The losing parties in appeals before one of the US Circuit Courts (or top state courts) may request a review by the Supreme Court by filing a “Petition for Writ of Certiorari.” The justices review those petitions and vote. If four or more justices vote yes, the case is accepted for review (written briefs, oral arguments, and a decision). If not, the decision of the appeals court remains standing, but that does not mean that the Court agrees with that decision. Because the Court is usually silent on its reasons for declining to hear cases, legal scholars can speculate on what could have happened if the Court had accepted the case for argument. That silence, however, was interrupted in a recent case, allowing a fascinating-yet-troubling glimpse behind the Court’s curtain.

ARCHDIOCESE OF WASHINGTON v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY involves relatively simple facts (as described by the appeals court): “Like other transit authorities, it [the WMATA] sells commercial advertising space to defray the costs of its services, and for years it had accepted ads on all types of subjects. In 2015 WMATA closed its advertising space to issue-oriented ads, including political, religious, and advocacy ads. This decision followed extended complaints from riders, community groups, business interests, and its employees, resulting in regional and federal concerns about the safety and security of its transportation services, vandalism of its property, and a time-intensive administrative burden reviewing proposed ads and responding to complaints about ads. … Based on experience that its approach to advertising was interfering with its ability to provide safe and reliable transportation service, WMATA adopted Guidelines Governing Commercial Advertising, employing broad subject-matter prohibitions in order to maintain viewpoint neutrality and avoid ad hoc bureaucratic determinations about which ads are benign and which are not. Guideline 12 states: “Advertisements that promote or oppose any religion, religious practice or belief are prohibited.” The Archdiocese of Washington contends that Guideline 12 violates the First Amendment and the Religious Freedom Restoration Act (“RFRA”) and seeks a mandatory preliminary injunction that would require WMATA to place an avowedly religious ad on the exteriors of its buses. … The “Find the Perfect Gift” ad that the Archdiocese seeks to have WMATA place on the exterior of its buses depicts a starry night and the silhouettes of three shepherds and sheep on a hill facing a bright shining star high in the sky, along with the words “Find the Perfect Gift.” The ad includes a web address and a social media hashtag. Its website, although still under construction when the ad was submitted to WMATA, “contained substantial content promoting the Catholic Church,” including “a link to ‘Parish Resources,’ . . . a way to ‘Order Holy Cards,’ and . . . religious videos and ‘daily reflections’ of a religious nature.”

The Archdiocese lost at the federal trial and appeals levels and filed a petition for review by the Supreme Court. However, because Justice Kavanaugh had been a member of the Circuit Court panel hearing the appeal (before he was elevated to the Supreme Court), he had to recuse himself from voting on the petition.

Unlike most Certiorari denials, which are silent on reasoning, in this case the Court published a “Statement of JUSTICE GORSUCH, with whom JUSTICE THOMAS joins, respecting the denial of certiorari.” The Statement goes on for several pages setting forth the reasoning that the justices would have used to strike down the WMATA’s policy disallowing religious advertising on its trains and stations, but the Statement’s beginning delivers a thunderous revelation:

“The petition for a writ of certiorari is denied. JUSTICE KAVANAUGH took no part in the consideration or decision of this petition. … Because the full Court is unable to hear this case, it makes a poor candidate for our review. But for that complication, however, our intervention and a reversal would be warranted …”

In other words, if only Justice Kavanaugh didn’t have to recuse himself, the Conservative majority of the Supreme Court would have accepted the case and decided for the Catholic Archdiocese – no matter what the parties would have written in their briefs, no matter what dozens of Amicus briefs by interested parties would have said, no matter what the nation’s best lawyers would have presented to the Court in oral arguments – all those monumental, costly, good-faith efforts would have made no difference to the Court, because the result was preordained.

The gradual descent of Supreme Court decisions into political predictability – a widening polarization that has eroded public trust in the other two branches of our government – would only accelerate by unnecessary statements that imply eager loyalty to a political camp. Perhaps it was no coincidence that Ecclesiastes chose to string together his warnings of polarization and verbosity: “A time to tear apart and a time to sew together; A time to be silent and a time to speak.”

Avraham Azrieli  Columbia, Maryland, April 7, 2020  www.AzrieliBooks.com