High Court Calls for US Views in Snarls on Water Pollution

by Barbara Leonard, Court House News, December 3, 2018

WASHINGTON (CN) – The Supreme Court ordered the U.S. solicitor general on Monday to offer input in two water cases, one involving a pipeline crack that caused an oil spill in South Carolina and the other involving Maui wastewater that drifts into the ocean.

While the Supreme Court has not yet said whether it will grant certiorari in the cases, its order Monday is unusual in that it specifies a deadline of Jan. 4 for the U.S. solicitor general to weigh in.

Requests calling for the views of the solicitor general, otherwise known as CVSGs, usually are made without a deadline. Scotusblog.com called it possible that the deadline here was “intended to ensure that the justices could, if they decide to grant review, hear oral arguments and decide the cases by the end of the current term.”

In the pipeline case, the petition for certiorari came from Kinder Morgan Energy Partners as the owner of the Planation Pipe Line, which runs 3,100-mile from Louisiana to Washington, D.C.

Represented by Paul Clement with Kirkland & Ellis, the company said it took swift action in December 2014 to repair a crack in its pipeline below Anderson County, South Carolina, that caused a spill of about 370,000 gallons of oil.

Two years later he groups Upstate Forever and Savannah Riverkeeper filed suit under the Clean Water Act. Though a federal judge dismissed the case after determining that the spill did not implicate navigable waters, as required for jurisdiction under the Clean Water Act,  the Fourth Circuit reversed in April 2018.

Kinder Morgan says in its petition that the Supreme Court should settle a circuit split over whether the Clean Water Act “applies not only to discharges into navigable waters, but also discharges into soil and groundwater, so long as there is a ‘direct hydrological connection’ (or, in the Ninth Circuit’s equally atextual formulation, a ‘fairly traceable’ connection) between the groundwater and some navigable water.”

While the Fourth Circuit aligned with the Ninth Circuit in its ruling, the Fifth and Seventh Circuits have rejected such arguments.

Attorneys at the Southern Environmental Law Center responded to Kinder Morgan’s petition on behalf the groups Upstate Forever and Savannah Riverkeeper.

The differences between groundwater and navigable water is also at issue in Monday’s other CSVG case, where the county of Maui is represented by the firm Hunton Andrews Kurth.

In its petition for certiorari, the county notes that both the Environmental Protection Agency and Hawaii regulators “have always known” that groundwater causes discharge from its wastewater-treatment center in Lahaina to reach the ocean.

Though neither the state nor the federal agency has required permitting under the National Pollutant Discharge Elimination System, several conservation groups led by Hawaii Wildlife Fund claimed in a 2012 complaint that the lack of an NPDES permit violated the Clean Water Act.

A federal judge sided with the challengers at summary judgment, and the Ninth Circuit affirmed earlier this year.

In its petition for certiorari, Maui calls this holding a “radical expansion of point source permitting,” poised to carry massive liability for Maui and its taxpayers.

“And the same fate is likely to befall millions of other sources, including the roughly 6,600 UIC wells and 21,000 septic systems in Hawai’i,” the petition states, using an abbreviation for underground injection control wells used to treat wastewater. “Indeed, recent notices of intent to file citizen suits for groundwater pollution follow and expand on the Ninth Circuit’s rationale.”

Attorneys at Earthjustice are representing Maui’s court opponents in the appeal.

Apart from the two CSVG orders, the Supreme Court on Monday did not take up any new cases.

Dozens of cases were rejected meanwhile, including on appeal from environmental groups that are challenging President Donald Trump. Similar challenges to the wall remain pending.