Supreme Court to decide if Clean Water Act limits Hawaii’s underground wastewater dumping

The Supreme Court
(Susan Walsh / Associated Press)

The Supreme Court agreed Tuesday to decide whether the Clean Water Act can prevent sewage plants from putting waste water into the ground if it flows from there into a river, bay or the ocean.

The case from Hawaii is an important test of the reach of the federal government’s anti-pollution authority.

Environmentalists sued alleging a sewage plant in Maui was discharging treated waste water into the ground and it was flowing underground from there into the Pacific Ocean.


They won before a federal judge and the 9th Circuit Court of Appeals in San Francisco, which held that the pollution was subject to federal control because it was the “functional equivalent of a discharge into the navigable water.”

But the Supreme Court agreed to hear an appeal from Hawaii that was backed by the Assn. of California Water Agencies. Their lawyers called the 9th Circuit’s ruling a “radical expansion” of federal authority. If upheld, its approach would extend new federal regulation to water treatment plants across the country, they said.

The Clean Water Act calls for preventing discharge of pollutants into the “navigable waters of the United States.” Water agencies say the law refers only to polluted water flowing directly into streams, rivers and bays, not groundwater.

For more than a decade, the justices have been split over how far the federal government can go to regulate water inside the United States, whether it be wetlands, or, as in this case, groundwater. The court’s conservatives have argued the federal government can only regulate polluted water that flows directly into a river, bay or the ocean. The law forbids discharges of pollutants into “the waters of the United States.”

But environmentalists as well as the court’s liberal justices have said this authority can extend farther inland to prevent pollution that will eventually flow into rivers and bays.

The case, County of Maui vs. Hawaii Wildlife Fund, is scheduled to be heard in the fall.


Meanwhile, the court took no action on closely watched appeals involving abortion and gay rights. For weeks, the justices have been weighing whether to rule on an Indiana abortion law that would make it illegal for women to terminate a pregnancy based on the sex, race or disability of the fetus, including a diagnosis of Down syndrome.

The court is also considering three appeals asking whether the Civil Rights Act forbids job discrimination against gay or transgender employees. The 1964 law says employees may not be discriminated “because of sex,” and several appellate courts have ruled this includes bias against gay, lesbian or transgender employees.

Separately on Tuesday, the high court for a second time set aside a death sentence for a Texas man who as a teenager had trouble understanding the days of the week or the months of year.

After the high court in 2002 abolished capital punishment for those with a severe intellectual disability, lawyers for Bobby James Moore sought to have him removed from death row in Texas based on evidence he had “significant mental and social difficulties” since he was young. In 1980, he had shot and killed a store clerk in a botched robbery. But the Texas Court of Criminal Appeals rejected his disability claim on the grounds that Moore had fared well in prison.

Two years ago, the Supreme Court heard an appeal filed on behalf of Moore and ruled that the Texas state court’s ruling was mistaken. Its analysis focused on his time in prison and not his long-standing intellectual disability. After reconsidering the matter, the Texas state judges reaffirmed their earlier ruling.

This time, the Supreme Court overruled the state court without bothering to hear arguments in Moore vs. Texas. In an unsigned 10-page opinion, the justices said that “Moore has shown he is a person with intellectual disability,” so his death sentence cannot stand.

Chief Justice John G. Roberts Jr. agreed in a separate concurring opinion, even though he had dissented two years ago. He said the Texas state judges focused once again on Moore’s successful adaption to prison, not his intellectual shortcomings. “That did not pass muster under this court’s analysis last time. It still doesn’t,” Roberts wrote.

Justice Samuel A. Alito Jr. dissented and was joined by Justices Clarence Thomas and Neil M. Gorsuch. “The court’s foray into fact-finding is an unsound departure from our usual practice,” Alito wrote.

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