WASHINGTON — On Wednesday, the U.S. Supreme Court will hear oral arguments in a case that started out as a local fight years ago about whether sewage seeping into the ocean near Kahekili Beach on Maui’s west side violates the federal Clean Water Act.

The stakes have since grown far higher.

Maui County Mayor Mike Victorino has pushed the case all the way to the high court, ignoring the recent approval of a settlement by the Maui County Council.  The county is backed by the Trump administration and other major players in the oil, coal and gas industries that want to loosen regulations.

Environmental groups and several council members are worried that a ruling by the conservative-leaning court in favor of the county could lead to a significant reinterpretation and weakening of the Clean Water Act.

Stephen Wermiel, a Supreme Court expert and professor of constitutional law at American University in Washington, D.C., said the fact that so many special interests are jumping into the case with friend-of-the-court legal briefs highlights just how significant the argument is before the justices.

Scientists have found the treated wastewater flowing into the ocean off Kahekili Beach in West Maui is harmful to coral reefs. Courtesy: Jen Smith

It’s not a matter of the court thrusting itself into the political fray, he said.

It’s a matter of taking up an issue with significant practical importance for business and industry interests that would like to see fewer federal regulations when it comes to pollutant discharge and conservation groups that would prefer better oversight and accountability.

“What raises the stakes and puts it in the center of the political ring is everybody weighing in about how important the issues are on both sides of the case,” Wermiel said.

It’s also hard to ignore that larger context, he said, which is the Trump administration’s constant attempts to weaken environmental regulations on business. This case is a clear example.

30 Amicus Briefs

Those groups supporting Maui County include the U.S. Justice Department, the American Petroleum Institute, the National Mining Association and Energy Transfer Partners, the company behind the Dakota Access Pipeline that became the target of a protest movement on the Standing Rock Indian Reservation.

But the fossil fuel industries aren’t alone in their interest in the case.

A number of other organizations and individuals have weighed in. Those range from the U.S. Chamber of Commerce and libertarian-leaning Pacific Legal Foundation that are supportive of less regulation to a coalition of craft breweries from across the country and Trout Unlimited, a conservation-minded fishing group that both advocate for cleaner water.

A total of about 30 amicus briefs have been filed in the case.

There also appears to be a clear partisan divide as Republican governors and senators representing mostly red states have lined up behind Maui County and the Trump administration.

Traditionally blue states have sided with Earthjustice, the nonprofit legal firm representing the Hawaii environmental groups that originally filed the lawsuit against Maui County. 

Trump’s EPA Changes Course

Back in 2012, four environmental groups — including the Hawaii Wildlife Fund, Surfrider Foundation, Sierra Club and West Maui Preservation Association — filed a lawsuit over the discharge. They argued that the treated wastewater going into the ocean was killing the coral reefs.

If the county wanted to comply with the Clean Water Act, the plaintiffs argued, it would need to get a permit from the U.S. Environmental Protection Agency to continue dumping pollutants into the water.

Maui County fought back, saying that the law only required a permit if the pollutants were being directly discharged, such as through a pipeline, into “navigable waters.” Groundwater that then percolated into an open lake, stream or ocean didn’t count since it wasn’t a direct source of the pollution.

Oral arguments before the U.S. Supreme Court in a nationally watched case where a coalition of environmental groups has sued Maui County for not properly regulating sewage seeping into the ocean are set to begin Wednesday. Flickr

Federal judges in Hawaii and the 9th U.S. Circuit Court of Appeals disagreed, as did the Obama administration’s EPA. The lower courts sided with the environmental groups following long-standing interpretations of the law.

Trump’s election in 2016, however, changed the calculus and set the stage for Maui County’s eventual appeal to the Supreme Court.

Maui County approved spending $4.3 million on outside counsel to pursue its appeal, and hired Elbert Lin to argue its case before the justices.

Lin is an accomplished litigator who used to work as West Virginia’s solicitor general. He also has experience arguing cases before the Supreme Court, and was successful in blocking Obama-era clean air rules from taking effect.

Not only has the Justice Department taken up Maui County’s cause, but the EPA under Trump has also reversed its interpretation of the Clean Water Act to better align with its legal arguments in the case.

That fact was noted by three former EPA administrators — including William Reilly, who served under President George H.W. Bush — who jointly filed a brief in support of Earthjustice’s position.

Ever since the Clean Water Act was enacted, they said, the EPA has consistently ruled that pollutants discharged to surface waters from a known source, even if traveling through groundwater, should be permitted.

The Trump EPA’s new interpretation is “misguided,” they said, and would “open an enormous loophole in what Congress intended to be a comprehensive statutory scheme.”

On the other hand, Aaron Streett, the attorney representing the U.S. Chamber, wrote that if the lower court rulings stood then there will be “dire and far-reaching consequences. It is a recipe for regulatory uncertainty, wasteful overlap, and unpredictable compliance costs.”

Mayor Claims Damages Exaggerated

Victorino declined an interview with Civil Beat for this story. His spokesman cited the ongoing litigation before the high court.

That hasn’t stopped Victorino from speaking out on the topic. He’s repeatedly expressed his views on the case on the county’s website and in press releases and op-eds published in local news outlets, including Civil Beat.

Victorino says his intent is not to gut the Clean Water Act, but rather seek clarity on the issue. Victorino has pushed back on the scientific studies that have shown the wastewater flowing into the ocean from Maui County’s injection wells promotes algae growth that then suffocates and kills the coral reef in the area.

Maui Mayor Mike Victorino speaks to joint WAM Finance committees.
Maui Mayor Mike Victorino has ignored a settlement approved by the Maui County Council to end the Clean Water Act lawsuit. Cory Lum/Civil Beat/2019

He’s also said photos and videos showing the degradation are misleading, and he blamed the press, in part, for providing an inaccurate view of what’s really going on.

Victorino repeats the talking points of the Trump administration and other conservative organizations when he says the litigation pending before the Supreme Court is meant to expand the reach of the Clean Water Act.

If the environmental groups prevail, he says, it could result in hefty fines for the county, more lawsuits and hundreds of millions of dollars in new infrastructure costs.

“We want to recycle 100 percent of our wastewater, but that takes time and money as well as private property owners willing to take our water as paying customers,” Victorino wrote in an Oct. 18 statement explaining his reasons for rejecting a county council settlement.

David Henkin is the Honolulu-based attorney for Earthjustice who is representing the environmental groups before the Supreme Court. He said that many of Victorino’s public statements can be classified as “fear mongering” and “complete fiction.”

“The mayor seems to want to come up with excuse after excuse for pursuing the appeal and none of them have any credibility,” Henkin said.

He pointed to the fact that former EPA administrators and officials who have filed legal briefs in support of his position say that it’s Maui County and the Trump administration that are trying to reverse decades of precedent when it comes to enforcing the Clean Water Act.

Mayor Versus The Council

Victorino raised some eyebrows last week when he announced he wanted to sue fossil fuel companies to get them to pay for their role in exacerbating climate change and contributing to rising sea levels.

Maui County Council Chairwoman Kelly King said the mayor’s announcement sounded like a distraction.

For one, the mayor and his county attorneys didn’t actually file a lawsuit. He simply said in a press release that he planned to do so at an unspecified later date.

“It seems odd to me that on the one hand he’s holding hands with the petroleum industry to undermine the Clean Water Act, and then on the other hand he’s saying he’s going to sue the petroleum industry over climate change,” King says.

“He’s decided that he’s just going to forge ahead, which is kind of a rogue move.”

The settlement with Earthjustice approved by the Maui County Council also makes clear that Henkin’s clients would not pursue further legal action against the county so long as officials followed through on Victorino’s own promise of upgrading its infrastructure and recycling 100% of Maui County’s wastewater.

The settlement agreement only asked for the county to invest $2.5 million to start and to pay a $100,000 fine, a penalty that Henkin said was a requirement under EPA rules.

“I’m not in a position to speculate as to why the mayor is doing what he’s doing,” Henkin said. “I can confirm that he has been very interested in going full steam ahead with the appeal rather than fix the problem.”

The fact that Maui County’s wastewater fight has become a proxy war for those in the fossil fuel industry has some in Hawaii nervous.

But Victorino said he won’t comply with the settlement agreement, a situation that’s created its own legal crisis over who in Maui government has the authority to settle a legal dispute.

Hawaii state Rep. Angus McKelvey, whose district includes West Maui, filed a lawsuit in state court last week along with others in an attempt to force a settlement. He said he doesn’t understand why Victorino has been so obstinate, especially given the potential harm that could come from staying the course.

He believes that if Maui County gets a favorable ruling in the Supreme Court the biggest potential winner in all this is the Trump administration.

“We were on the road to a settlement,” McKelvey said. “So why does the mayor insist on taking the bus over the cliff like a bad Sandra Bullock and Keanu Reeves movie?”

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