Supreme Court casts doubt on Trump-backed ‘loophole’ in Clean Water Act

Green Sea Turtle surfacing at Olowalu, Maui
Over and under image of Green Sea Turtle off Olowalu, Maui
Tor Johnson | Moment | Getty Images

The Supreme Court seemed skeptical of the Trump administration’s interpretation of the Clean Water Act during oral arguments in a major environmental law case argued on Wednesday.

The case concerns whether companies must obtain federal permits for dumping pollutants indirectly into the nation’s oceans and streams, via groundwater, or whether they must only do so for pollutants that enter such waters directly.

The court’s four liberals seemed disinclined to agree with arguments put forward by the Trump administration and the county of Maui that indirect pollution should not require Clean Water Act permits.

The court’s conservatives appeared split on the matter, though Chief Justice John Roberts and Justice Brett Kavanaugh indicated they may side with environmentalists who argued that allowing such indirect pollution would effectively carve out a wide loophole in the landmark regulation. 

Though the dispute in the case seems like a technical distinction, forces on both sides have said the consequences of a ruling against them could be dire.

Business groups argue that requiring a permit for indirect pollution could harm agricultural producers, while environmentalists say that not doing so will upset decades of precedent that have kept the nation’s waterways clean.

The dispute arose in 2012 when a collection of environmentalist sued the county of Maui over its wastewater treatment facility on the island, which injects millions of gallons of treated waste each day deep into the ground.

An EPA-ordered study showed that nearly all of that treated waste ultimately ends up in the Pacific Ocean.

The case is County of Maui, Hawaii v. Hawaii Wildlife Fund, et al. No. 18-260.

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