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Thursday, November 07, 2019
Hot Take On The Maui Clean Water Act Arguments
By Robert Thomas @ 2:12 PM :: 547 Views :: Maui County, Environment, Tourism

Hot Take On The Maui Clean Water Act Arguments (Protip: ARRIVE EARLY)

by Robert Thomas, InverseCondemnation, November 7, 2019

Protip for the public line for SCOTUS arguments: you have to get there really early. As in really early. Before 5 am early. Because that's the time that we, along with some of our William and Mary Law students (pictured above, after the arguments), arrived at 1 First Street NE to take up our place in line yesterday for the arguments in the Maui Clean Water Act case. And we were -- literally -- the very last allowed in for the full arguments. We roadtripped it from Williamsburg (more on that in a future post), meaning that we awoke long before 5am, leaving the law school at an ungodly hour. It would have been a shame to have taken all that effort, only to not get in. So heads-up line standers: get there early.

Why all this effort, you may ask? After all, you can read the transcript the same day, or listen to the recording at the end of the week. Why bother being there in person? To us, there's nothing like witnessing it firsthand to catch some of the nuances. And the spectacle of U.S. Supreme Court arguments. The protests, the media scrum, the big-time lawyering. It is especially critical for soon-to-be-lawyers to see great advocates (all three who argued were, in our opinion, excellent), and observe the very jurists whose opinions they have been reading and analyzing during law school live and in-person (especially in this age of Celebrity Justices). I sure wish I had the chance to do this during my law education. Williamsburg is just within reasonable striking range of DC, so we figured we should make the effort. This is the second time we've done this (Knick was the first), and we're convinced the effort is worth it. 

As for impressions of the substance of the arguments, we think its going to be a very close one. Even though it is not bold to predict a split Court in nearly any Supreme Court case, we think this one merits it. It all turns on the language of the Clean Water Act, and what does the term "from" mean. Really. The advocates proposed various analogies about what the term means, using whiskey flasks, punchbowls, groceries. And there were all sorts of probable and improbable hypotheticals from the bench.  

In the end, the conclusion we reached is that the statute isn't all that clear one way or the other about what it means in the situation presented here: is the pollutant in the Pacific Ocean "from" the County of Maui's treated effluent injection well even though it was transported from the well to the ocean by groundwater? Several Justices pretty clearly thought yes, while others thought no. Reasonable minds apparently can differ. Which to us means that this case may be resolved more on policy grounds than by classic statutory interpretation (if there is even such a thing).

Thus, some of the Justices were looking for middle ground (see Justice Breyer's suggestion of a new "functional equivalent" test), while others (the Chief Justice, and Justices Gorsuch and Kavanaugh) probing about "limiting principles" on the Respondent's argument that any after-the-fact traceability from a point source to a jurisdictional water was enough to trigger CWA liability. That's a tough hill to die on, given the nearly unfettered liability that is triggered, so we're thinking the inability to articulate a viable limitation on liability may push several Justices to reject the argument. With several Justices appearing to have their minds set (Kagan, Sotomayor, Alito, and (presumably) Thomas), we think Justice Kavanaugh is going to be the fulcrum on this one. 

Finally, what's interesting about this case is the ongoing state court dispute about whether it has been settled. Most of the time, courts are not made aware of ongoing settlement efforts. Here, however, the Court was told about the settlement (a letter that, interestingly, no longer appears on the docket). A Justice might reasonably think to themselves: how strong is the Respondent's argument if it is so desperate to settle, especially at this stage of the game?

So although the case was submitted yesterday, this one isn't over. It might be settled. It might not. The Court may rule by June, or it might not. 

PDF: Transcript, County of Maui v. Hawaii Wildlife Fund, No. 18-260 (U.S. Nov. 6, 2019)

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