Saturday, June 06, 2020
Hawai'i Free Press

Current Articles | Archives

Thursday, November 07, 2019
Maui Sewage Case Makes a Supreme Court Splash
By Selected News Articles @ 1:53 PM :: 1700 Views :: Maui County, Environment, Tourism

Maui Sewage Case Makes a Supreme Court Splash

by Jack Rogers Court House News, Nov. 6, 2019

WASHINGTON (CN) — On the hook for polluting the Pacific Ocean with millions of gallons of treated sewage every day, a lawyer for Hawaii’s Maui County told the Supreme Court on Wednesday that a ruling against it will open another set of floodgates.

“There are more than 500,000 similar underground injection wells in the country and nearly 6,000 in Hawaii alone,” Elbert Lin, of the firm Hunton Andrews Kurth, said this morning at oral arguments in Washington.

Lin said the lower courts improperly expanded the definition in the Clean Water Act of what constitutes a point source, meaning a source that delivers pollutants into navigable waters. For decades, the government has not required permitting for underground injection wells, though leaks from these sources eventually flow into the Pacific.

Lin insisted that the facilities like Maui’s sewage center in Lahaina are already regulated at the local and state level, and that it is the land, not the well, that should be considered the conveyance of the pollutant.

But Justice Stephen Breyer told the county’s lawyer that his argument would create “a road map for people who want to avoid the point-source regulation.”

“All we do is we just cut off the pipes or whatever, 5 feet from the ocean or 5 feet from the navigable stream,” Breyer said. “What I’m looking for in this case is what’s a standard that will prevent evasion. I don’t see how yours prevents evasion.”

Arguing for the environmental group Hawaii Wildlife Fund, Earthjustice attorney David Henkin took the analogy a step farther.

“When you buy groceries, you say they came from the store, not from your car, even though that’s the last place they were before they entered your house,” Henkin said. “Likewise, the millions of gallons of treated sewage entering the Pacific Ocean off West Maui every day come from petitioner’s wells under any understanding of the term.”

Deputy U.S. Solicitor General Malcolm Stewart meanwhile offered his own metaphor, arguing in support of Maui.

“If at home I pour whiskey from a bottle into a flask, and then I bring the flask to a party at a different location, and I pour whiskey into the punchbowl there, nobody would say that I had added whiskey to the punch from the bottle,” Stewart said.

Justice Elena Kagan asked Stewart if his argument included the regulation of a “point source” like a pipe, discharging pollutants onto land. Stewart conceded this hypothetical would require a regulatory permit — but if a pipe is placed underground, he continued, no permit would be required because groundwater does not qualify as a “point source” under the law.

Kagan said this type of argument was the type of road map Breyer had previously suggested that organizations would use to avoid Clean Water Act regulations.

“But, here, the question is the pollution coming from a point source, an undisputed point source, and going into the navigable water, and the only question is whether the fact that there’s some kind of intermediary between the two,” Kagan said. “The point of this regulation is to go at the source, and the source is still a point source emitting pollutants.”

Earlier in the hearing, Kagan defended the statute as firm and well-defined.

“It requires a permit when there’s any addition of any pollutants to navigable waters from any point source,” she said. “So, here, it’s from a point source, which is the well, and it’s to navigable waters, which is the ocean, and it’s an addition. How does this statute not apply?”

Hannah Bernard, executive director and co-founder of Hawaii Wildlife Fund, said she hoped the Supreme Court would rule in her group’s favor and uphold the intent of the Clean Water Act.

“After 12 years of fruitless negotiations and filing of this lawsuit, we are dismayed that our case was elevated to this level by Maui County’s mayor, since it defies the will of the people of Maui and the Maui County Council to protect our reefs,” Bernard said.


TEXT "follow HawaiiFreePress" to 40404

Register to Vote


808 Silent Majority

808 State Update AM940


ACA Signups Hawaii



Alliance Defending Freedom

Aloha Life Advocates

Aloha Pregnancy Care Center

American Council of Trustees and Alumni

American Mothers of Hawaii



Antonio Gramsci Reading List

A Place for Women in Waipio

Astronomy Hawaii

Audit The Rail

Ballotpedia Hawaii

Better Hawaii 

Blaisdell Memorial Project

Broken Trust 

Build More Hawaiian Homes Working Group

CAFR Hawaii

Castaway Conservative

Children's Alliance Hawaii

Children's Rights Institute

Christian Homeschoolers of Hawaii

Citizens for Recall

Cliff Slater's Second Opinion

Coffee Break

CSIS Pacific Forum

DAR Hawaii

DVids Hawaii

E Hana Kakou Kelii Akina

E Māua Ola i Moku o Keawe

Farmers For Choice Hawaii


Fix Oahu!

Follow the Money Hawaii

Frank in Hawaii

Front Page Magazine

Frontline: The Fixers

Genetic Literacy Project

Get Off Your Butts!

God, Freedom, America

Grassroot Institute

Hawaii Aganst Assisted Suicide

Hawaii Aquarium Fish Report

Hawaii Aviation Preservation Society

Hawaii Catholic TV

Hawaii Christian Coalition

Hawaii Cigar Association

Hawaii Coalition Against Legalized Gambling

Hawaii ConCon Info

Hawaii Credit Union Watch

Hawaii Crime Victims' Rights

Hawaii Crop Improvement Association

Hawaii Debt Clock

Hawaii Defending Marriage

Hawaii Defense Foundation

Hawaii Families for Educational Choice

Hawaii Family Advocates

Hawaii Family Forum

Hawaii Farmers and Ranchers United

Hawaii Farmer's Daughter

Hawaii Federalist Society

Hawaii Federation of Republican Women

Hawaii Firearm Community

Hawaii Fishermen's Alliance

Hawaii Future Project

Hawaii Gathering of Eagles

Hawaii History Blog

Hawaii Homeschool Association

Hawaii Jihadi Trial

Hawaii March for Life

Hawaii Meth Project

Hawaii's Partnership for Appropriate & Compassionate Care

Hawaii Public Charter School Network

Hawaii Rifle Association

Hawaii Right to Life -- Big Island

Hawaii Right to Life -- Oahu

Hawaii Shield Law Coalition

Hawaii Shippers Council

Hawaii Smokers Alliance

Hawaii State Data Lab

Hawaii Together

Heritage Foundation

HI Coalition Against Legalized Gambling



Hiram Fong Papers

Homeschool Legal Defense Hawaii

Honolulu Homeless Crisis

Honolulu Navy League

Honolulu Traffic

Horns of Jericho Blog

House Minority Blog

House Republican Caucus YouTube


Hump Day Report

I Vote Hawaii

If Hawaii News

Imua TMT

Inouye-Kwock, NYT 1992

Inside the Nature Conservancy

Inverse Condemnation

Investigative Project on Terrorism

Iowa Meets Maui

Jackson v Abercrombie

Jihad Watch

July 4 in Hawaii

Kahle v New Hope

Kakaako Cares

Kau TEA Party

Kauai Co GOP

Keep Hawaii's Heroes


Land and Power in Hawaii

Legislative Committee Analysis Tool

Lessons in Firearm Education

Lingle Years

Malulani Foundation

Managed Care Matters -- Hawaii

Malama Pregnancy Center of Maui

Mauna Kea Recreational Users Group

Middle East Forum--The Legal Project

Mililani Conservatives for Change

Military Home Educators' Network Oahu

Missile Defense Advocacy

MIS Veterans Hawaii

Muslim Brotherhood in America

NAMI Hawaii


National Christian Foundation Hawaii

National Parents Org Hawaii

National Wind Watch

New Zeal

NFIB Hawaii News

No GMO Means No Aloha

Northwest Economic Policy Seminar

Not Dead Yet, Hawaii

Now What I Really Think

NRA-ILA Hawaii

Oahu Alternative Transport

ObamaCare Abortion Hawaii


OHA Lies

Opt Out Today

Pacific Aviation Museum

Patients Rights Council Hawaii

PEACE Hawaii

People vs Machine

Pritchett Cartoons 

Pro-GMO Hawaii


Rental by Owner Awareness Assn

Republican Party -- Hawaii State

Research Institute for Hawaii USA

Rick Hamada Show

RJ Rummel

Robotics Organizing Committee

Save Dillingham Airfield

School Choice in Hawaii

SIFE Remington

SIFE W. Oahu 

Sink the Jones Act

Smart About Marijuana--Hawaii

St Marianne Cope

State Budget Solutions Hawaii

State Policy Network

Statehood for Guam

Tax Foundation of Hawaii

The Harriet Tubman Agenda

The Long War Journal

The Real Hanabusa

Time Out Honolulu

Trustee Akina KWO Columns

Truth About Trade & Technology - Hawaii

UCC Truths

Union Members Know Your Rights

US Tax Foundation Hawaii Info

Valor in the Pacific

VAREP Honolulu

West Maui Taxpayers Association

What Natalie Thinks

Whole Life Hawaii