The case from Hawaii has emerged as a major test of the scope of the federal anti-pollution law, even as President Trump's EPA cuts back enforcement.
Supreme Court justices, both conservative and liberal, appeared skeptical Wednesday of a Trump administration argument that the federal Clean Water Act should not apply to sewage plant wastewater that flows into the ground and eventually seeps into federally protected waters, such as rivers or oceans.
The EPA now maintains “that groundwater will break the causal chain,” Deputy Solicitor Gen. Malcolm L. Stewart told the justices.Yes, Stewart said.Justices Elena Kagan and Stephen G. Breyer said that if that view were adopted, it would allow polluters to run pipes that stop 25 feet short of a river or bay. It would give “an absolute road map” for how to break the law while spewing pollution into protected waters, Breyer said.
But the justices struggled over how to prevent the stricter permitting rules required under the Clean Water Act from applying to ordinary homeowners with a leaky septic tank. Justice Samuel A. Alito Jr. and the chief justice said they were troubled by the idea of extending federal regulation to cover situations where a trace amount of pollution may be found in a river or bay.
They won before a federal judge and the 9th Circuit Court of Appeals in San Francisco, which held that the pollution was subject to federal control because it was the “functional equivalent of a discharge into the navigable water.”
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