By Pat Gallagher, Sierra Club
Who even knew that sewer plants inject treated sewage into deep wells, a dystopian counterpoint to extracting drinking water from deep wells. I guess if one manages sewage on an island like Maui, one needs to devise creative ways to get rid of the crap. Hence the case County of Maui v. Hawai’i Wildlife Fund, Sierra Club et al, decided April 23 by the US Supreme Court. In a huge victory for everyone who values clean water, the Court rejected the Trump Administration’s argument that any pollution which first goes into groundwater is exempt from the Clean Water Act.
Justice Breyer, writing for a six-Justice majority that included Chief Justice Roberts and Justice Kavanaugh, instead laid out a new test for lower courts to employ when faced with cases where pollution moves through groundwater into a river, lake, or in this case, the Pacific Ocean. To wit: is the pollution the “functional equivalent” of a direct discharge into the ocean? Here there was compelling evidence that injected sewage was moving directly through groundwater into the Pacific, destroying coral reefs. There was no Clean Water Act protection, because the County, backed by the Trump administration, claimed that the law simply did not apply. Luckily, the Court recognized that such a reading of the Clean Water Act would render it toothless and violate the intent of Congress.
The Sierra Club’s Maui Group of the Hawai’i Chapter, represented by Earthjustice, led this litigation in partnership with the Hawai’i Wildlife Fund, West Maui Preservation Association and Surfrider Foundation.