A November 2018 commentary by our Featured Expert Contributor on environmental-law matters, Samuel Boxerman (with Ben Tannen), discussed two related petitions for certiorari pending at the U.S. Supreme Court that presented a novel Clean Water Act question: whether a discharge through groundwater is an addition of a pollutant to waters of the United States from a point source. Decisions from the U.S. Courts of Appeals for the Fourth and Ninth reasoned that the groundwater qualifies as a point source. Other appeals courts, including the Sixth Circuit, disagree.
In December, the Court invited the Solicitor General of the United States to present the government’s view on whether to grant the petitions. Yesterday, the Solicitor General filed its brief with the Court, urging it to resolve the circuit split.
The brief doesn’t express the government’s legal position on the groundwater-discharge issue, but it does explain why the Ninth Circuit decision, Hawai’i Wildlife Fund v. City of Maui, offers a better vehicle for circuit-split resolution. The Solicitor General also explained that the Environmental Protection Agency’s ongoing review of groundwater’s status as a point source under the CWA (see WLF’s comments here) is not a reason for the justices to deny certiorari.
The question before the Court is a critical one for free enterprise. As Mr. Boxerman and Mr. Tannen wrote in a February 2018 commentary on the Maui decision:
Left as is, the Maui decision could present significant issues across industry. By holding that the Clean Water Act regulates discharges through groundwater without providing a limiting principle as to when the connection to U.S. waters is too remote, the Ninth Circuit has exponentially increased a source’s risk of liability under the Act.