Supplemental Brief — County of Maui, Hawaii, Petitioner v. Hawaii Wildlife Fund, et al.

Supreme Court briefOct 5, 2018

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No. 18-260

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In The

Supreme Court of the United States

-----------------------------------------------------------------COUNTY OF MAUI,

Petitioner,

HAWAI‘I WILDLIFE FUND; SIERRA CLUB –

MAUI GROUP; SURFRIDER FOUNDATION;

WEST MAUI PRESERVATION ASSOCIATION,

Respondents.

-----------------------------------------------------------------On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

-----------------------------------------------------------------SUPPLEMENTAL BRIEF FOR PETITIONER

-----------------------------------------------------------------COUNTY OF MAUI

HUNTON ANDREWS KURTH LLP

PATRICK K. WONG

MICHAEL R. SHEBELSKIE

RICHELLE M. THOMSON

Counsel of Record

200 South High Street

ELBERT LIN

Wailuku, Maui, Hawai‘i 96793 951 East Byrd Street,

East Tower

Phone: (808) 270-7740

Richmond, Virginia 23219

mshebelskie@HuntonAK.com

Phone: (804) 788-8200

COLLEEN P. DOYLE

DIANA PFEFFER MARTIN

550 South Hope Street,

Suite 2000

Los Angeles, California 90071

Phone: (213) 532-2000

October 5, 2018

Counsel for Petitioner

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ......................................

TABLE OF AUTHORITIES .................................

SUPPLEMENTAL BRIEF FOR PETITIONER ....

CONCLUSION.....................................................

TABLE OF AUTHORITIES

Page

FEDERAL CASES:

Ky. Waterways All. v. Ky. Utils. Co., No. 18-5115,

2018 WL 4559315 (6th Cir. Sept. 24, 2018) ...... 2, 3, 4

Rapanos v. United States, 547 U.S. 715 (2006) ............2

South Fla. Water Mgmt. Dist. v. Miccosukee

Tribe of Indians, 541 U.S. 95 (2004) .........................4

Tenn. Clean Water Network v. Tenn. Valley Auth.,

No. 17-6155, 2018 WL 4559103 (6th Cir. Sept.

24, 2018) ....................................................................2

Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637 (4th Cir. 2018), petition

for cert. filed, 87 U.S.L.W. 3069 (U.S. Aug. 28,

2018) (No. 18-268) ............................................. 1, 4, 5

Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427

(2014) .........................................................................5

DOCKETED CASES:

Conservation Law Found., Inc. v. Longwood Venues & Destinations, Inc., No. 1:18-cv-11821 (D.

Mass. filed Aug. 24, 2018) .........................................5

Conservation Law Found., Inc. v. Wequassett Inn

LLP, No. 1:18-cv-11820 (D. Mass. filed Aug. 24,

2018) ..........................................................................5

SUPPLEMENTAL BRIEF FOR PETITIONER

Pursuant to Rule 15.8 of the Rules of this Court,

Petitioner respectfully submits this Supplemental

Brief to alert this Court to two recent decisions from

the U.S. Court of Appeals for the Sixth Circuit that

deepen the conflict in authority described in the Petition regarding the meaning of the Clean Water Act

(CWA).

As explained in the Petition (at 18-24), there is a

growing split in authority over the critical distinction

that Congress drew in the CWA between point source

and nonpoint source pollution. On one hand, this Court

and several courts of appeals have read the CWA to

distinguish between those two types of pollution based

on an intuitive, bright-line test: point source pollution

is delivered to navigable waters by means of a point

source, whereas nonpoint source pollution is not. On

the other hand, the Ninth Circuit concluded below that

point source pollution sometimes includes pollutants

that reach navigable waters by nonpoint sources, like

groundwater, if the pollutants are “traceable” to a point

source. That decision was joined in April of this year by

a similar decision from the Fourth Circuit. See Upstate

Forever v. Kinder Morgan Energy Partners, L.P., 887

F.3d 637 (4th Cir. 2018), petition for cert. filed, 87

U.S.L.W. 3069 (U.S. Aug. 28, 2018) (No. 18-268).

This division in authority is both of extreme importance and the result of flawed reasoning. The Ninth

Circuit’s decision has expanded the CWA’s point

source permitting to millions of sources long regulated

as nonpoint sources of pollution, and injected significant uncertainty into a program that needs clarity and

nationwide uniformity. See Pet. 30-36. It is also wrong.

As set forth in the Petition (at 24-30), the Ninth Circuit’s decision cannot be squared with the CWA’s text,

structure, context, or history. And it is premised on an

erroneous reading of Justice Scalia’s plurality opinion

in Rapanos v. United States, 547 U.S. 715 (2006), which

only this Court can definitively put to rest.

Since the filing of the Petition, the Sixth Circuit

has issued two decisions that deepen the conflict in authority—unequivocally rejecting the Ninth Circuit’s

(and the Fourth Circuit’s) expansive view of point

source pollution. See Ky. Waterways All. v. Ky. Utils.

Co., No. 18-5115, 2018 WL 4559315 (6th Cir. Sept. 24,

2018); Tenn. Clean Water Network v. Tenn. Valley Auth.,

No. 17-6155, 2018 WL 4559103 (6th Cir. Sept. 24, 2018)

(applying Ky. Waterways). Both cases involved pollutants escaping the disposal sites for coal ash, a byproduct of burning coal to produce electricity. In each case,

the plaintiffs argued that there was point source pollution under the CWA because, as in this case, pollutants were entering groundwater and being carried by

that groundwater to navigable waters. The Sixth Circuit refused this argument, expressly “disagree[ing]

with the decisions from our sister circuits in Upstate

Forever v. Kinder Morgan Energy Partners, L.P., . . . ,

and Hawai‘i Wildlife Fund v. Cty. of Maui. . . .” Ky. Waterways, 2018 WL 4559315, at *5 (citations omitted).

In direct conflict with the Ninth and Fourth Circuits, the Sixth Circuit held that point source pollution

under the CWA includes only pollution that “make[s]

its way to a navigable water . . . by virtue of a pointsource conveyance.” Id. at *7. That does not cover pollution carried to navigable waters by groundwater,

“which is a nonpoint-source conveyance.” Ibid. A CWA

point source permit is not required for “pollutants

[that] travel from a point source through nonpoint

sources en route to navigable waters.” Ibid.

The Sixth Circuit’s reasoning tracks many of the

arguments in the Petition. The court explained that its

interpretation is compelled by the text of several provisions of the CWA, id. at *6-7, and consistent with the

statute’s legislative history, id. at *10 n.10. It found

support in the CWA’s “purpose of fostering cooperative

federalism,” id. at *8, noting that the CWA “envisions

significant state involvement in environmental regulation” and “leaves all forms of nonpoint-source pollution

to state regulation,” ibid. In addition, the plaintiffs’

theory would “upend” and “effectively nullify” other environmental laws and regulations with which the CWA

is intended to “work in tandem,” such as the Resource

Conservation and Recovery Act (RCRA) and the Environmental Protection Agency’s rule under RCRA that

specifically addresses coal ash storage and treatment,

id. at *9.

The Sixth Circuit also explicitly rejected the reliance of the Ninth and Fourth Circuits on Justice

Scalia’s plurality opinion in Rapanos. The court explained that those courts relied on a quotation “taken

out of context in an effort to expand the scope of the

CWA well beyond what the Rapanos Court envisioned.” Id. at *8. Properly understood, Justice Scalia’s

opinion does not support a point-source-to-nonpointsource-to-navigable-water theory of pollution, but

merely “make[s] clear” “that pollutants which travel

through multiple point sources before discharging into

navigable waters are still covered by the CWA” point

source program. Ibid.

The Sixth Circuit’s decisions confirm in many

ways the need for this Court’s prompt intervention.

The Sixth Circuit is the third federal appeals court this

calendar year to weigh in on the meaning of point

source pollution under the CWA. And it has reached

the third different interpretation of the statute. The

Ninth Circuit below concluded that point source pollution under the CWA broadly reaches pollution that is

“fairly traceable” to a point source and reaches navigable waters in more than de minimis amounts. App. 24.

The Fourth Circuit similarly expanded the concept of

point source pollution, but adopted a test expressly rejected by the Ninth Circuit: In the five states that

make up that circuit, point source pollution under the

CWA now exists where there is a “direct hydrological

connection” between a point source and navigable waters. Compare Upstate Forever, 887 F.3d at 651 n.12,

with App. 24 n.3. And the Sixth Circuit is the first this

year to agree with this Court’s interpretation in South

Florida Water Management District v. Miccosukee

Tribe of Indians, 541 U.S. 95 (2004). As noted in the

Petition (at 35), recent CWA notices of intent to file

citizen suits make clear that more cases are on their

way.* Guidance is desperately needed.

Moreover, the Sixth Circuit’s decisions involve a

third type of pollutant source, highlighting the extraordinary reach of the question at issue. Underground injection wells, pipeline leaks, and coal ash disposal sites

are just the tip of a very large iceberg that awaits millions of unsuspecting individuals and entities, who previously had no reason to be concerned with CWA point

source permitting, if the decisions of the Ninth and

Fourth Circuits stand. That is the kind of “enormous

and transformative expansion” in regulatory authority

that warrants this Court’s attention. Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2444 (2014).

Finally, the Sixth Circuit’s discussion of Rapanos

shows clearly that the conflict in authority can only be

resolved by this Court. As the Sixth Circuit recognized,

both the Ninth and Fourth Circuits claim to find effectively controlling support for their rulings in Justice

Scalia’s opinion in Rapanos. See App. 21-24; Upstate

Forever, 887 F.3d at 649-50. That is a mistaken reading

of the opinion, but also one that only this Court can

definitively settle. This issue is as much about a faithful reading of the CWA’s text and history as it is about

* Indeed, complaints have followed from both of the notices

specifically referenced in the Petition. See Conservation Law

Found., Inc. v. Longwood Venues & Destinations, Inc., No. 1:18cv-11821 (D. Mass. filed Aug. 24, 2018); Conservation Law

Found., Inc. v. Wequassett Inn LLP, No. 1:18-cv-11820 (D. Mass.

filed Aug. 24, 2018).

the meaning of this Court’s precedents. This Court’s

intervention is required, and urgently so.

------------------------------------------------------------------

CONCLUSION

The Petition should be granted.

Respectfully submitted,

COUNTY OF MAUI