Recommendation of U.S. Solicitor General Increases Likelihood of U.S. Supreme Court Review of Emerging Clean Water Act Liability Theory; EPA to Issue Related Guidance in Coming Weeks

On January 4, 2019, in response to a Call for the View of the Solicitor General (“CVSG”) issued by the Supreme Court, the U.S. Solicitor General (“SG”) filed an amicus brief recommending that the Supreme Court grant certiorari in one of two Clean Water Act (“CWA”) citizen suits for which Petitions for Certiorari are pending. In the suits, one of which originated in South Carolina and the other in Hawaii, the U.S. Circuits Courts for the 4th and 9th Circuits respectively held that a party is liable under the CWA for releasing pollutants from a point source which travel through the ground and reach the waters of the U.S.

The CWA requires a permit under the National Pollutant Discharge Elimination System (“NPDES”) or a state counterpart program for any discharge of a pollutant from a point source into the waters of the United States. A typical NPDES permit circumstance involves a pipe discharging pollutants directly into the waters of the U.S. The emerging theory is that pollutant discharges from a point source that travel through the ground to reach the waters of the U.S., rather than being discharged directly into U.S. waters, also violate the CWA. EPA’s position has been that CWA jurisdiction does extend to pollutants traveling through the ground only if a direct hydrologically connection to the waters of the U.S. can be demonstrated.

The County of Maui operates injection wells into which it discharges treated wastewater. It is undisputed that the treated water constitutes a pollutant and that it can be traced and shown to be reaching the Pacific Ocean. In Hawaii Wildlife Fund v County of Maui, 886 F 3d 737 [9th Cir.; March 30, 2018] the Court upheld a District Court decision finding a violation of the CWA on the theory that a discharge into the waters of the U.S. that was first injected into the ground and then migrated into the Pacific Ocean can still be characterized as originating from a point source, notwithstanding the lack of a direct discharge from the point source to the waters of the U.S. The County has filed a Petition for Certiorari.

Two other Circuit Courts have addressed the issue and arrived at opposite conclusions. In Upstate Forever v. Kinder Morgan Energy Partners LP, 887 F 3d 637 [4th Cir. April 12, 2018] the Court concurred with the analysis in Hawaii and held that gasoline spilled from a pipeline and continuing to leach into the waters of the U.S. was a CWA violation. The 6th Circuit in Kentucky Waterways Alliance v. Kentucky Utilities Company, F. 3d 925 [6th Cir.; September 24, 2018] expressly disagreed with the Hawaii and Upstate Forever decisions. Kinder Morgan has also filed a Petition for Certiorari.

A CVSG is a discretionary action of the Supreme Court through which the Court solicits the official view of the United States in cases in which the U.S. is not a party. Essentially the U.S. becomes an officially-invited amicus curiae, or friend of the Court. A vote of the Court is required to issue a CVSG, which typically occurs in only approximately ten cases a term.

The SG urged the Court to accept the Hawaii case but not the Kinder Morgan case, and to address only the single issue of whether a discharge into the waters of the U.S. that was first released on or into the ground and which then migrated into the waters of the U.S. can still be characterized as originating from a point source, notwithstanding the lack of a direct discharge from the point source to the waters of the U.S. Each case raised ancillary issues, which is why the SG recommended that only the Hawaii case be accepted and the issues to be addressed be limited to the primary substantive issue.

Although it could have, the SG did not take a position on the merits of the case. The SG pointed out that in February, 2018 EPA sought public input on whether the CWA should be interpreted as the citizen plaintiffs in these cases have alleged. In its brief the SG revealed that EPA will in the “next several weeks” issue a response on the issue, which the SG asserted could be taken into consideration if the Court accepts the case.

This recommendation significantly increases the likelihood that the Court will do so and thereby decide whether an emerging theory of liability is a correct interpretation of the CWA. Out of the thousands of Petition for Certiorari that are filed each year, the Court grants approximately 0.9% of them. In the case of so-called “paid Petitions” such as these, where the parties have not sought pauper status, the rate increases to approximately 42%, meaning the Court is 47 times more likely to grant the Petition. Put differently, the Court follows the SG’s recommendation almost 80% of the time.*

Bottom line: expect the Court to grant certiorari.

*Statistics excerpted from “An Empirical Analysis of Supreme Court Certiorari Petition Procedures: The Call for Response and the Call for the Views of the Solicitor General” appearing in the George Mason Law Review, Vol 16, at 237 [Winter 2009]