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Supreme Court Water Case Fate Hinges on Maui Clash (1)

Oct. 3, 2019, 5:40 PMUpdated: Oct. 3, 2019, 10:05 PM

A power struggle among local officials in Hawaii continues to cloud the fate of a major environmental dispute pending at the U.S. Supreme Court, two weeks after the Maui County Council voted to withdraw its appeal.

Maui’s mayor refuses to go along, and Council Chairwoman Kelly King said she is drafting a letter to let the Supreme Court know where the settlement dispute stands.

“I think they need to know what’s going on over here on Maui and ask themselves the question: ‘Do we really want to take this case on when it might have already been settled?’” King told Bloomberg Environment Oct. 2.

The justices are scheduled to hear arguments in the case—which asks them to clarify the scope of the Clean Water Act—on Nov. 6 if a settlement isn’t finalized by then.

Legal Question

The Maui County Council voted Sept. 20 to settle and withdraw its case. But Mayor Michael Victorino still refuses to follow through.

County lawyers and high-powered attorneys from the firm Hunton Andrews Kurth LLP are representing Maui in the case, and the council and mayor’s office disagree over who can direct the lawyers’ actions.

The case, County of Maui v. Hawai’i Wildlife Fund, involves whether pollution that moves indirectly from a source to a federally regulated waterway triggers the law’s federal permitting requirements.

It’s the biggest Clean Water Act question to reach the justices since 2006, when the court weighed in on the types of waterways the law covers.

The U.S. Court of Appeals for the Ninth Circuit last year sided with environmental groups represented by Earthjustice and ruled that Maui should have sought permits for its disposal wells that send treated wastewater underground, where it mixes with groundwater and flows to the Pacific Ocean.

The county appealed to the Supreme Court, which in February agreed to review the case. Members of the Maui County Council expressed second thoughts about the appeal earlier this year and ultimately voted 5-4 Sept. 20 to approve a resolution authorizing a settlement.

Power Struggle

But now the council and the mayor’s office disagree over who ultimately has authority to withdraw the case.

The lawmakers say their vote requires Victorino to execute the agreement; the mayor’s office says he has discretion to ignore the council’s wishes.

In a column before the council’s vote, Victorino said he opposed settling the case and argued that moving forward would allow the county “to continue to manage its recycled water disposal in the most environmentally and economically responsible way now available and feasible.”

A spokesman said Victorino is still considering the council’s settlement resolution.

The dispute is complicated by a system in which the county’s lawyers work for both the council and the mayor.

“We have a very dysfunctional system where the corporation counsel represents the mayor and the county council, but the only one that can fire them is the mayor,” King said. “They end up really working for the mayor.”

She’s planning to propose hiring special counsel to represent the lawmakers. The dispute over settlement authority could end up in local courts, controlled by Hawaii legal precedent.

Cases pending at the U.S. Supreme Court can be settled and withdrawn at any point before a decision is issued.

Broad Interest

A broad set of states, cities, energy companies, homebuilders, politicians, and others have taken a close interest in the outcome of the legal dispute still before the Supreme Court.

Some warn that a ruling in favor of environmentalists would expand the Clean Water Act to apply to groundwater pollution; others say the law has always applied to pollution that migrates through groundwater, so long as it meets the statute’s other jurisdictional requirements.

The Trump administration, which opposes environmentalists in the case, recently unveiled a new Environmental Protection Agency policy that stipulates that all pollution that touches groundwater is beyond the scope of the Clean Water Act.

The case is County of Maui v. Hawai’i Wildlife Fund, U.S., No. 18-260.

(Updated with comment from the mayor's office in the 14th paragraph.)

To contact the reporter on this story: Ellen M. Gilmer in Washington at egilmer@bloombergenvironment.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com; Chuck McCutcheon at cmccutcheon@bloombergenvironment.com

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