There they go again: In a Thursday decision involving the Clean Water Act, Supreme Court Justices John Roberts and Brett Kavanaugh joined the more liberal justices in inventing language to help legislation achieve what they consider its “intended” purpose.
Whereas more consistent conservatives believe in applying only the plain language of a statute or the Constitution, Roberts and Kavanaugh sometimes stray from that ideal. In the case at hand, County of Maui v. Hawaii Wildlife Fund, they joined the decision by Justice Stephen Breyer and the other three liberals to create, almost from thin air, a new rule that the Clean Water Act applies in circumstances that are “the functional equivalent” of the situations expressly listed in the statute.
Never mind that the words “functional equivalent” appear nowhere in the Clean Water Act itself. Yet, the court majority arrogated for itself the job of discerning “the statutory provision’s basic purposes,” even where the statute not only was largely silent, but actually contained language leaning in the other direction.
At issue was the longstanding practice in Maui County, Hawaii, repeatedly allowed by the Environmental Protection Agency, of injecting partially treated sewage into underground wells that in turn leach, through groundwater, to the Pacific Ocean. The Clean Water Act gives the EPA regulatory authority over the discharge of any pollutant from a “point source” into “navigable waters.” A “point source” is a “discernible, confined and discrete conveyance.” The Clean Water Act quite expressly leaves regulation of nonpoint source pollution and of groundwater to the states, rather than to the EPA.
The question is whether discharging into something that leaches in an intermediate way through groundwater means that the original discharge, rather than the two intermediate steps (amorphous groundwater, which is neither a “confined” nor a “discrete” conveyance, and wells), should count as the point source for purposes of the law. That is not what the statute says, but six justices of the court nonetheless decided it is the “functional equivalent” anyway. Therefore, the court decided that the EPA should crack down on the practice, rather than let the state of Hawaii exercise jurisdiction.
Justices Clarence Thomas and Neil Gorsuch filed a dissenting opinion, and Justice Samuel Alito filed another. Alito’s opinion was particularly helpful in explaining why the distinction is important. The reason Congress left nonpoint source regulation to the states, he noted (citing other court precedents), was that “non-point source pollution … often presents more complicated issues that are better suited to individualized local solutions” because they are so “dependent on such site-specific factors as topography, soil structure, rainfall, vegetation, and land use that its uniform federal regulation was virtually impossible.”
Moreover, the EPA’s penalties are severe, “backed by criminal penalties and steep civil fines.” For those two reasons (local site specificity and the states’ ability to assess punishment more flexibly), Congress explicitly rejected amendments that would have put groundwater under the EPA’s purview.
Nonetheless, the court majority complains, the “consequences” of Maui’s practices “are inconsistent with major congressional objectives,” meaning to keep navigable waters clean. Therefore, the court created this new “functional equivalent” test so the federal authorities would be required to crack down on Maui.
To which, Alito responded quite blisteringly: “If the Court is going to devise its own legal rules, instead of interpreting those enacted by Congress, it might at least adopt rules that can be applied with a modicum of consistency. Here, however, the Court makes up a rule that provides no clear guidance and invites arbitrary and inconsistent application.”
Worse, the logical implications of the court’s decision could ensnare even “ordinary homeowners with septic tanks.” Clearly, this could create a regulatory nightmare both for citizens and regulators alike.
“The Court adopts a nebulous standard, enumerates a non-exhaustive list of potentially relevant factors, and washes its hands of the problem,” Alito writes. “We should not require regulated parties to ‘feel their way on a case-by-case basis’ where the costs of uncertainty are so great.”
Alito is right. Roberts and Kavanaugh have joined the liberals in opening a terrible regulatory Pandora’s box. The result will be anything but functional.
