By Jessica A. Knoblauch, Earthjustice
One out of thousands.
That’s the chance of having your legal case picked to be heard by the U.S. Supreme Court. The odds are so long you’re more likely to be struck by lightning.
Oddly enough, Earthjustice attorney David Henkin has experienced both phenomena. The latter occurred in 1988. The former is playing out now.
On November 6, Henkin heads to the nation’s highest court in the land to settle adecades-long legal dispute involving a wastewater treatment plant, its pollution discharges, and a partially dead coral reef in Hawaiʻi. But the implications of this case stretch far beyond the sandy shores of Hawai’i. The Supreme Court’s decision will determine whether water all over America remains protected from pollution discharges. To protect everyone’s right to clean water, he’ll face off against the country’s most notorious polluters. If the court’s opinion doesn’t go Earthjustice’s way, it could have disastrous repercussions for clean water across the country.
The fate of the nation’s waterways rests in Henkin’s hands.
He’ll have 30 minutes to make his case.
The Supreme Court case formally named Hawaiʻi Wildlife Fund v. County of Maui will be argued in front of nine justices cloaked in coal black robes, surrounded by thick, red- velvet curtains and bone-white stone pillars. The stark, solemn setting inside couldn’t be more different from where the case originates, in West Maui.
Each year, thousands of swimsuit-clad tourists flock to Kahekili Beach Park, where they snorkel in the clear, turquoise waters for the chance to swim alongside sea turtles and tropical reef fish and spot sea stars, sea urchins and coral all colors of the rainbow.
But bubbling up beneath Kahekili’s famous reef is a dirty secret.
In 1982, the county of Maui’s wastewater treatment facility began discharging treated sewage into groundwater that eventually makes its way into Kahekili’s waters and the Pacific Ocean. Though treated, the wastewater contains dangerous levels of phosphorus and nitrogen, which promote excessive growth that smothers the reef, turning its vibrant colors to a dull, lifeless brown.
For years, Maui community groups complained to officials about the wastewater discharges and damage to the reef. Several studies backed up their concerns including a 2011 EPA-funded study showing conclusively that the sewage flows end up in the ocean, and a 2017 study linking the sewage discharge to serious and ongoing harm to Kahekili’s reef.
Still, the county did nothing.
Though it knew the pollution reached the ocean, the county’s executive branch argues it’s not legally required to do anything about it because the pollution doesn’t flow directly into the ocean, but reaches the ocean indirectly through groundwater. The Clean Water Act, it argues, only covers direct discharges.
“According to Maui County, a polluter can avoid the law by taking a pipeline that discharges waste directly into the ocean and cutting it ten feet short of the shoreline,” says Henkin, who sued the county on behalf of four Maui community groups in 2012. “At the end of the day, waste from the pipeline is still polluting the water. And, under the county’s twisted logic, the polluter would get off scot-free.”
After the rulings, Earthjustice and its clients tried to convince the county to fix the problem rather than pay millions of dollars in legal penalties for breaking the law. There even existed a straightforward solution: Use the excess wastewater for irrigation, a potential boon for dry West Maui.
“Our clients are all Maui residents who want their government to do the right thing,” says Henkin. “We never had an interest in having the county pay huge fines to the U.S. Treasury. After all, the county’s money is our clients’ taxpayer dollars.”
More than 16,000 residents petitioned the local government to settle, and the county council even voted to do so. But the mayor’s office declined to sign off, and the two bodies are still at odds over who gets the final call. In the meantime, the case proceeds at the Supreme Court.
The high court agreed to review the county’s case last February. A who’s who of dangerous polluters, including fossil fuel and industrial agriculture groups, quickly signed on to back the county and its dangerous position. The U.S. EPA under President Trump has also sided with the county, reversing three decades of agency guidance, under Republican and Democratic administrations, that the Clean Water Act regulates discharges of pollution that reach our nation’s waters through groundwater.
These groups want to create a loophole in the Clean Water Act, allowing dirty industries to pollute U.S. waters as long as the pollution isn’t directly discharged into a water source.
It would be a free-for-all for dangerous polluters.
With nearly 30 years of litigation experience, Henkin is no stranger to high stakes cases. During his time at Earthjustice, he’s frequently and successfully sued both the U.S. Army and the Navy; secured a rare temporary restraining order against a logging company intent on chopping down the habitat of the endangered Hawaiian crow; and set critical legal precedent designating habitat for endangered and threatened plants found only on Hawaiʻi.
“David is a bulldog in the courtroom,” says Paul Achitoff, a former Earthjustice managing attorney. “He’s exceptional at oral arguments and one of our best courtroom advocates.”
Henkin’s colleagues often cite his passion for community-based lawyering as an immense asset in the courtroom.
But Henkin didn’t always know he wanted to be a public interest lawyer. In the late ‘80s, the summer before Henkin started law school, he got a job at a New York law firm that was gearing up for a big antitrust trial. The firm needed lots of college-educated people, no background or experience required.
It was a cushy atmosphere. Every morning, someone came by with a big cart piled with pastries and bagels, and every afternoon they brought lunch. If the employees stayed after 8 p.m., the firm would pay for their dinner and cab ride home.
“All the paralegals would stay until dinnertime. Then we’d go out on the town, and at 2 a.m. we’d grab a cab back to Brooklyn,” says Henkin. “It was a fun time.”
Eventually, the case settled favorably for the client and firm. As the champagne flowed, Henkin could see the associates envisioning their pathways to partnership opening up. He was happy for them. But he felt no emotional connection to the work.
“I had a profound indifference about what we were doing,” says Henkin. “I wanted to have something that I felt passionately engaged about.”
After graduating law school, Henkin got the chance to work in Earthjustice’s Honolulu office, which focused on cases that centered people’s relationship to the environment.
Almost immediately, Henkin began working with local and Native Hawaiian communities struggling with environmental issues. One evening while he was still jetlagged, Henkin and Earthjustice’s Achitoff drove out to Oahu’s Windward side — the island’s east coast, famous for its jagged emerald mountains — to meet with residents who were working to restore streams diverted by sugar plantations.
“We were driving in the dark, winding into the jungle,” says Henkin. “It was very disorienting. But then I got to this wonderful community meeting with these great people who are trying to do great things.”
“Very quickly I was just super captivated by the work, by the clients, by the spirit in the office,” says Henkin. “I thought, ‘I could be a zealous advocate for this.’”
That’s the amount of time Henkin will have to argue his case before a white light flashes and the Supreme Court justices let loose with a barrage of questions.
Henkin will be the third Earthjustice attorney to argue one of the organization’s cases before the Supreme Court. To prepare, Henkin is doing several practice runs, called “moot hearings,” in front of seasoned lawyers and Supreme Court litigation practitioners acting as justices.
During his first and second practice runs, the “justices” peppered Henkin with questions designed to poke holes in his argument, mimicking the judicial philosophies of some of the real Supreme Court justices. After the argument, the acting justices advised Henkin to tighten up his arguments and pack his answers into digestible chunks. They also praised his ability to keep a slow and steady pace, a skill he’s learned after 25-plus years living in a low-key place like Hawai‘i.
On November 6, in front of the real Supreme Court, Henkin will trade his customary Hawaiian shirt and khaki pants (which serve as formal business attire in Hawai‘i) for a freshly-tailored suit. During the hearing, he’ll stand just a few feet away from the justices.
Despite the formidable forum, Henkin looks forward to an “active bench.”
“I really like having a conversation with the judges,” says Henkin. “I like the back and forth. I think that’s when I’m at my best.”
In addition to the practice hearings, Henkin is backed by a solid legal brief with a strong textual argument that makes clear the Maui wastewater case is exactly the type of situation that the Clean Water Act is intended to regulate. Several groups, including former EPA administrators and officials from multiple administrations, 13 states, a Native American tribe, craft beer brewers, and clean water advocates, also filed briefs in support of Earthjustice and its Maui community clients.
Whatever the Supreme Court decides could shape how federal courts think about the question of indirect pollution for decades to come. For communities across the U.S., the answer will have meaningful consequences.
“This case pits those who are committed to the protection of life-giving, clean water against the Trump administration and polluting industries that want free rein to use groundwater as a sewer,” Henkin says.
The high court will most likely issue its opinion by next spring.