Halfway through a November 2019 argument in a blockbuster Clean Water Act case, Justice Stephen Breyer had an idea.
For nearly 30 minutes, the Supreme Court had been grappling with a complicated question: Does pollution that flows through groundwater on its way to navigable waters require a federal permit?
A lower court had said that it does — at least in the case of wastewater that had moved from a sewage facility in Maui County, Hawaii, traveled a short distance through porous lava rock and spewed into the Pacific Ocean.
The case, County of Maui v. Hawaii Wildlife Fund, had then advanced to the Supreme Court, where some legal observers expected the five-member conservative majority to substantially limit the reach of the Clean Water Act.
But in the midst of the argument, Breyer, a member of the court’s liberal wing, conceived of a test that eventually proved palatable to some of his Republican-appointed colleagues.
“I want to try out one thing, if you think — have any reaction to it,” said Breyer to a Justice Department attorney representing the Trump administration’s EPA. “It’s regulated … if it’s the functional equivalent of a direct discharge.”
He continued: “That leaves a lot of room for the EPA to write regulations, to decide what is the functional equivalent of a direct discharge.”
Legal observers now laud Maui as one of Breyer’s most memorable environmental achievements in his nearly 28 years on the nation’s highest bench. He plans to retire this summer (Greenwire, Jan. 27).
During the 2019 arguments, however, Malcolm Stewart, the DOJ lawyer arguing against the need for Maui County to obtain a Clean Water Act permit, was skeptical of Breyer’s idea.
“I think the people on the other side of the case and their amici would say, if it can be shown that the pollutants that were released from the point source ultimately wound up in the navigable waters, then it is the functional equivalent,” he said.
Breyer tried again when Earthjustice senior attorney David Henkin, representing environmental groups, approached the lectern.
“In writing the opinion,” Breyer said to Henkin, “I think we’re going to have to have a standard.”
As Henkin explained that his clients would welcome a test like the one Breyer had proposed during the argument, Chief Justice John Roberts interrupted.
“I don’t mean to be critical of the author of the phrase, but what does ‘functional equivalent’ mean?” he asked, eliciting laughter in the courtroom.
Henkin attempted to offer a definition on the spot before Breyer came to his rescue.
“Don’t worry,” Breyer said to more laughter. “He’ll have an opportunity because he didn’t make this phrase up.”
By the following April, the Supreme Court had issued its opinion in the case, with Breyer as the author of the decision and his new test as its centerpiece.
In Maui, Breyer laid out seven factors — including time and distance the pollutants traveled — for determining whether a release is the “functional equivalent of a direct discharge” in need of a federal permit (Greenwire, April 23, 2020).
His opinion won the votes of all three of his liberal colleagues, as well as two of the court’s five conservatives at the time: Roberts and Justice Brett Kavanaugh.
Former EPA attorney Mark Ryan said Maui appeared to be the result of consensus-building within the justices — something Breyer was known for.
“It’s a good example of him bringing as many of the justices together as possible by crafting carefully worded opinions that achieve a desired result without creating scary future precedent,” said Ryan.
The Maui ruling came as a relief to environmental advocates who had arrived at arguments fearing that the court would deal them a devastating blow.
“It’s stunning to think how close we came to a world where industries could just point their pipes straight down into groundwater to dispense of their pollution indirectly into clean water without repercussion,” said Earthjustice President Abigail Dillen after the decision.
After the Supreme Court issued its ruling, the Maui case returned to the lower courts. Last year, the U.S. District Court for the District of Hawaii applied Breyer’s multifactor test to determine that Maui County should have, in fact, secured a federal permit for the discharges from its Lahaina Wastewater Reclamation Facility (Greenwire, Oct. 21, 2021).
Other federal courts across the country will eventually use Breyer’s test in groundwater pollution disputes.
In the meantime, EPA is evaluating next steps on interpreting the Maui decision after rescinding Trump-era guidance that critics said had created a loophole for regulated entities (E&E News PM, Sept. 16, 2021).
“Although Breyer is considered part of the liberal wing of the court, his nuanced decision in Maui demonstrates the careful and measured approach he took to environmental and administrative law, where there usually are no bright line standards nor answers that don’t call for agency discretion in evaluating specific technical details,” said Ashley Peck, a partner at the law firm Holland & Hart LLP.
Environmental and industry lawyers say they expect Breyer’s test to be litigated for decades to come.
“The question of what constitutes the ‘functional equivalent of a direct discharge’ thus is likely to be a question of significant future litigation and debate,” said Morgan Lewis partner Duke McCall after the Maui ruling, “just as the question of what constitutes a ‘navigable water’ has proven to be.”
The next Clean Water Act war
The Supreme Court will soon wade back into the navigable waters fight — and it will do so with a bench that has shifted to a six-justice conservative supermajority in the years since Maui.
Breyer’s replacement is unlikely to make much of a difference in the court’s overall ideology.
But if Biden picks another consensus-builder, that justice could sometimes convince Roberts or another conservative to align with the diminished liberal wing, said Ryan, the former EPA official.
Biden has promised to nominate a Black woman. His list of potential picks includes U.S. Court of Appeals for the District of Columbia Circuit Judge Ketanji Brown Jackson and California Supreme Court Justice Leondra Kruger (Greenwire, Jan. 27).
“The top two candidates, according to the news, are both extremely bright and highly qualified,” he said. “But will they work with the others? That’s the question.”
In a move that surprised legal observers, the justices this week agreed to take up Sackett v. EPA, a challenge from Idaho landowners Chantell and Michael Sackett that had asked the Supreme Court to revisit its splintered 4-1-4 ruling in Rapanos v. United States (Greenwire, Jan. 24).
The 2006 ruling resulted in two competing tests for defining “waters of the U.S.,” or WOTUS.
Breyer was among the four justices who signed former Justice John Paul Stevens’ Rapanos dissent, finding that the Michigan wetlands at issue in the case fell within the scope of Clean Water Act jurisdiction.
But Breyer also penned a separate dissenting opinion, urging the federal government to act.
“In the absence of updated regulations, courts will have to make ad hoc determinations that run the risk of transforming scientific questions into matters of law,” Breyer wrote in Rapanos. “That is not the system Congress intended. Hence I believe that today’s opinions, taken together, call for the Army Corps of Engineers to write new regulations, and speedily so.”
In 2015, EPA and the Army Corps released the Clean Water Rule, a regulation aligned with former Justice Anthony Kennedy’s concurring opinion in Rapanos that said wetlands and streams are subject to federal jurisdiction if they have a “significant nexus” to navigable waters.
The Trump administration, however, gutted the Obama-era Clean Water Rule and offered a regulation more closely aligned with former Justice Antonin Scalia’s plurality opinion, which offered a much narrower test requiring a continuous surface connection.
A judge of the U.S. District Court for the District of Arizona struck down the Trump rule last year.
After that ruling, the Sacketts, who have been locked in a 17-year legal battle to build on their Idaho land without a permit, asked the Supreme Court to definitively favor Scalia’s test.
Over the objections of the Biden administration’s EPA, which said it is working on a brand-new WOTUS rule, the justices agreed. Court watchers say there are likely enough conservative justices on the bench for the Sacketts to prevail.
If the court hears Sackett this term, it would be among the last cases Breyer decides. If the case is instead heard this fall, it may be one of the first challenges on his replacement’s docket.