Tag: Hawaii

Supreme Court Rules That Certain, But Not All, Discharges to Groundwater May Require Permitting Under the Clean Water Act

In a 6-3 decision on Thursday, the United States Supreme Court vacated and remanded the opinion of the Ninth Circuit Court of Appeals and found that the Clean Water Act (“CWA”) regulated discharges from point sources “if the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters.” The Supreme Court distinguishes its opinion from the Ninth Circuit by determining that the “fairly traceable” test established by the lower courts was too broad to require a permit under the CWA.

The case concerned the city of Maui’s Lahaina Wastewater Reclamation Facility, which treats millions of gallons of sewage each day and injects the treated waste into wells deep underground. A study ordered by the United States Environmental Protection Agency demonstrated that the waste could be traced from the facility to the ocean.  As a result of the study, environmentalists argued that a permit under the CWA was required.

Prior to the Supreme Court ruling, both the federal district court and the court of appeals sided with environmental groups, and established a standard to require a permit under the CWA when pollutants are “fairly traceable” from the pipe to navigable waters, despite the fact that the discharge initially entered groundwater before entering a navigable water.

The Supreme Court found that the “fairly traceable” standard was too broad, citing the “power of modern science” to detect pollutants years after their release in minute quantities. Justice Stephen Breyer, writing for the majority, stated that a permit is required only when the indirect pollution in navigable waters via groundwater is the “functional equivalent of a direct discharge.”

“If the pipe ends 50 miles from navigable waters and the pipe emits pollutants that travel with groundwater, mix with much other material, and end up in navigable waters only many years later, the permitting requirements likely do not apply,” he wrote.

In dissenting opinions, Justices Thomas, Gorsuch and Alito stated that the CWA mandated a permit only for direct discharges of pollutants into navigable waters and that the majority opinion was unworkable and incomprehensible.

“Instead of concocting our own rule, I would interpret the words of the statute, and in my view, the better of the two possible interpretations is that a permit is required when a pollutant is discharged directly from a point source to navigable waters,” Alito wrote.

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

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For more on SCOTUS’s Clean Water Act decision, see the National Law Review Environmental, Energy & Resources law page.

High School Female Athletes Fail to Score on Class Certification

The U.S. District Court for the District of Hawaii recently denied female student-athletes’ motion for class certification under Title IX even though it rejected the defendants’ attacks on mootness and standing as well as Rule 23(a)’s requirements for commonality, typicality, and adequacy. Instead, the court found that the proposed class failed to satisfy the numerosity requirement that joinder would be impracticable.

The underlying case centered on Title IX allegations by female athletes at James Campbell High against defendants Hawaii State Department of Education and the Oahu Interscholastic Association. The athletes claimed that the defendants violated Title IX by failing to take remedial actions to meet Title IX’s anti-discrimination provisions and failed to provide Campbell female athletes with equivalent, athletic-participation opportunities. The athletes’ motion proposed the following class: “All present and future James Campbell High School female students and potential students who participate, seek to participate, and/or were deterred from participating in athletics at Campbell.” The plaintiffs alleged that the defendants’ records showed 366 Campbell female student-athletes in the 2018–2019 school year alone.

The court first addressed the issue of mootness after the defendants argued that two of the named plaintiffs had already graduated. The court found, however, that those athletes’ claims fit under the “inherently transitory” exception to mootness, given the necessarily finite duration of a high school student’s time as a student-athlete and the potential for repetition of the claims from similarly situated students.

The court next addressed the defendants’ argument that the named plaintiff — a ninth-grade water polo player — did not have standing because the water polo season had not yet begun at the time the motion was filed, and thus she had yet to experience the alleged discriminatory conduct. The court found that the defendants’ argument was erroneously narrow-focused and that the ninth-grade athletes had allegedly experienced discriminatory events generally suffered by the female student-athlete populations, which would apply even if a particular student’s athletic season had not yet started. Specifically, those student-athletes are forced to make plans around a discriminatory sports schedule or are exposed to a lack of publicity for female athletics programs, which are the types of harm that Title IX was implemented to prevent and remedy.

The court then turned its focus to Rule 23(a)’s requirements. While the court found that the athletes satisfied the commonality, typicality, and adequacy requirements, the court’s decision ultimately depended on the athletes’ inability to satisfy the numerosity requirement. Although the defendants did not appear to challenge numerosity, including that the class exceeded 300 members, the court found that the athletes had failed to demonstrate that joinder was impracticable and that the future members of the proposed class were reasonably identifiable. The court observed that the proposed class members were limited to the female population from a single high school and were geographically tied to one area of Hawaii and identifiable through school and athletic records. Thus, the court held that joinder of the current students within the class in a single lawsuit was not impracticable. The court also found that, with regard to the future and potential students, those subgroups were not reasonably identifiable and, thus, would not be considered in any numerosity determination.

As uncommon as it may be for a class of more than 300 members to fail the numerosity requirement of Rule 23(a), any case can offer distinct circumstances that allow a court to reject an otherwise presumed, accepted argument. The unique geographic facts here were sufficient for this court to reject certification. Ultimately, the facts always matter.

A.B. v. Haw. State Dep’t of Educ., Civ. No. 1:18-cv-00477 (D. Haw. Dec. 31, 2019).

©2011-2020 Carlton Fields, P.A.

For more on Title IX issues, see the National Law Review Public Education & Services section.

Ruling in First CWA Case to Rely on EPA’s Interpretive Statement on Groundwater Releases

On November 26, a federal district court judge in Massachusetts held that releases of pollutants reaching surface waters through groundwater do not require permits under the Clean Water Act (CWA), “irrespective of any hydrological connection to navigable waters.” Conservation Law Foundation Inc. v. Longwood Venues and Destinations Inc. et al., 1:18-cv-11821. The decision comes less than three weeks after the U.S. Supreme Court heard oral argument in County of Maui v. Hawaii Wildlife Fund, No. 18-260, in which the justices have been asked to decide whether the CWA’s National Pollutant Discharge Elimination System (NPDES) permitting requirement applies to releases that traverse nonpoint sources—like groundwater—before entering navigable waters.

In 2018, a citizen suit was filed against the owners of the Wychmere Beach Club claiming that the Beach Club’s wastewater treatment facility (in particular, the facility’s 22 leach pits located near the shoreline) discharged nitrogen into the groundwater and subsequently into Wychmere Harbor, a navigable water located off Cape Cod. The complaint accused the Beach Club of violating the CWA by discharging pollutants into the harbor and failing to obtain a federal permit for these releases. The Beach Club argued that it was not liable under the CWA because it released nitrogen into groundwater, rather than directly into the harbor, and that such a release is not covered by the CWA.

Unlike the decisions from the Fourth, Sixth, and Ninth Circuits that have addressed this issue, Longwood is the first case to rely on the April 2019 Interpretive Statement in which EPA concluded that releases traversing groundwater are categorically excluded from the requirement to obtain an NPDES permit. The court concluded that the CWA is ambiguous on the question of whether the statute requires permits for releases that reach surface waters via groundwater. The court then deferred to EPA’s Interpretive Statement under Chevron Step Two after concluding that EPA reasonably decided to exclude releases through groundwater from the NPDES program.

Citing the resultant ambiguity from dueling CWA directives; namely, that the federal government has jurisdiction over the waters of the United States while the states are primarily tasked with groundwater regulation, the court turned to EPA’s April 2019 interpretation of the statute to answer the question of whether – and to what extent – the CWA applies to releases into groundwater that carries pollutants into navigable waters. Finding the agency’s analysis reasonable, the court deferred to EPA’s conclusion that releases of pollutants into groundwater do not constitute point source discharges subject to the NPDES program or permitting requirements.

Until the Supreme Court issues a decision in Maui (expected before the end of June 2020), courts and regulated entities will continue to search for guidance on how the CWA applies to mediated releases of pollutants to surface waters. The Longwood decision’s approach—relying on EPA’s recent guidance—applies only to groundwater and offers no comfort to litigants in the Fourth and Ninth Circuits.

© 2019 Beveridge & Diamond PC

More on the Clean Water Act can be found in the National Law Review Environmental, Energy & Resources Law area.

Hawaii Decriminalizes Possession of Small Amounts of Marijuana

On July 9, 2019, Hawaii became the 26th state to decriminalize possession of small amounts of marijuana. HB 1383 (the “Law”), which became law when Governor David Ige allowed the veto deadline to pass without signing or striking down the bill, decriminalizes the possession of up to three grams of marijuana. It will go into effect on January 11, 2020.

Under the Law, those caught with up to three grams of marijuana will no longer face jail time but will still face a fine of $130. This is the smallest amount of marijuana that any state has decriminalized so far. Currently, possession of any amount of cannabis is punishable by up to 30 days in jail, a criminal record, and a $1,000 fine.

The Law also provides for the expungement “of criminal records pertaining solely to the possession of three grams or less of marijuana.” The state has amended its expungement statute in order to reflect this change, noting that courts must grant an expungement order, provided the individual is not facing any other criminal charges, and provided that the amount of marijuana possessed was three grams or less.

The Law establishes a “Marijuana Evaluation Task Force,” in an effort to examine other states’ laws, penalties and outcomes related to the decriminalization and legalization of marijuana. The task force, which will be active until June 30, 2021, will make recommendations on further changing marijuana laws in Hawaii.

The Law does not provide employment protections for recreational users, nor does it modify Hawaii’s Medical Use of Cannabis Law, which was amended last year in part to form a working group to evaluate potential discrimination against medical cannabis users and the employment protections made available in other states.

Employers and health care professionals should be ready to handle issues that arise with the potential conflict between state and federal law in devising compliance programs, both in terms of reporting and human resources issues, including practices and policies addressing drug use and drug testing. States continue to consider – and pass – legislation to decriminalize and legalize cannabis (both medicinal and recreational), and we are slowly marching toward 50-state legalization. All organizations – and particularly those with multi-state operations – should review and evaluate their current policies with respect to marijuana use by employees and patients.

This post was written with assistance from Radhika Gupta, a 2019 Summer Associate at Epstein Becker Green.

 

©2019 Epstein Becker & Green, P.C. All rights reserved.
For more on marijuana deregulation, please see the Biotech, Food & Drug law page on the National Law Review.

Ninth Circuit Issues Decision in Novel Clean Water Act Case

The Ninth Circuit issued its long-anticipated decision in the Hawai’i Wildlife Fund v. County of Maui case yesterday. County of Maui affirmed a decision awarding summary judgment to environmental groups based on what the court viewed to be undisputed proof that four effluent disposal wells at a wastewater disposal facility were known to discharge into the Pacific Ocean and that the County of Maui had failed to secure an National Pollutant Discharge Elimination System (NPDES) permit for them.

We have previously blogged regarding existing regulatory uncertainty under the Clean Water Act (CWA). In this case, the Ninth Circuit’s decision focuses on whether a CWA “point source” that indirectly transfers material to relevant waterways falls within the statute. The Ninth Circuit essentially rejected the connection that the wells were “indirect,” instead holding that they were analogous to stormwater collection systems, which had previously been found to be regulated by the CWA.

The court supported this conclusion based on the evidence that the County of Maui knew from the time the wells were constructed “that effluent from the wells would eventually reach the ocean some distance from shore.” The court also noted that the fact that “groundwater plays a role in delivering the pollutants from the wells to navigable water does not preclude liability under the statute.”

 

© 2018 Schiff Hardin LLP
This post was written by J. Michael Showalter of Schiff Hardin LLP.
Read more Environmental News on the National Law Review Environment News page.