Conservatives and liberals on SCOTUS join together to uphold clean water standards
A recent 6-3 ruling by the US Supreme Court went against the Trump administration and the Environmental Protection Agency (EPA) by broadening the interpretation of waterborne pollutants covered in the Clean Water Act (CWA).
By Emily Folk
The EPA’s 2019 interpretation of the CWA excluded pollution moving through groundwater from requiring permits. In related news, the Trump administration’s handling of the CWA removes federal oversight from ephemeral waterways replenished by precipitation. Several states filed lawsuits against the EPA regarding this rollback.
How might these events shape the future, and will they have a major impact? Let’s take a look at some of the possibilities.
The recent Supreme Court ruling related to a 1970s wastewater reclamation facility in Hawaii that discharged pollutants into injection wells.
They entered an aquifer and eventually traveled via groundwater to the Pacific Ocean. County officials said they sent an environmental impact report to the EPA and state health department before building the plant. That document predicted how groundwater pollution would end up in the Pacific Ocean.
Despite what that report showed, neither the health department nor EPA required the facility’s operators to get a permit.
Thus, such pollution continued for decades. Permits are now required, but the Supreme Court ruling only mandates parties to obtain permits for direct discharges, or those “functionally equivalent”.
Legal analysts point out that the ruling over discharges requiring permits is overly flexible. Thus, the lack of a framework could cause more lawsuits to move through the legal system regarding this new decision.
Even when companies get permits as required, they don’t stop pollution altogether. The permissions create boundaries within which the holders must operate. Water quality audits can help companies adhere to regulations, plus enjoy other benefits.
The new ruling closes a loophole concerning groundwater pollutants. Environmental groups are still happy with the outcome based on that improvement.
They believe the verdict may minimize waterway pollution overall, which is better than an increase. Some businesses previously practiced self-determination about permit requirements, but they cannot do that now.
It’s too soon to say how often companies might argue the “functionally equivalent” aspect of the ruling. The Supreme Court did determine that time and distance were the most critical indicators to consider regarding the need for permits.
However, other aspects, such as how much a chemical changes during travel and the manner in which it enters the water, may come into play, too. People should anticipate, therefore, that this is far from a closed topic.
Another recent development concerning EPA water quality standards is the Navigable Waters Protection Rule.
The Trump administration published a statement about it in January, then entered the standard into the Federal Register on April 21.
As mentioned earlier, this change affects ephemeral waterways by stripping them of federal protection. Two environmental coalitions recently filed suits against the U.S. Environmental Protection Agency and the Army Corps of Engineers.
They assert that the Navigable Waters Protection Rule violates the intended functionality of the Clean Water Act.
An EPA spokesperson said, “EPA does not comment on specific pending litigation. EPA and the Department of the Army believe that the Navigable Waters Protection Rule will stand the test of time as it is securely grounded in the text of the Clean Water Act and is supported by legislative history and Supreme Court case law.”
Publishing something into the Federal Register starts a 60-day window before the Rule goes into effect. During that time, parties can file CWA-related lawsuits all the country within federal courts.
Analysts think it unlikely a federal judge would issue an injunction to block the Navigable Waters Protection Rule across the country.
Instead, the more likely outcome is for judges to issue stays effective in their jurisdictions. Then, the Rule would apply in some places, but not others.
That’s not the only case of EPA water quality standards varying by state, either. In mid-April, the EPA decided that Washington State can act as the primary authority of the topic there.
The decision places the responsibility into the hands of state leaders rather than federal legislators. This news may trigger responses from other states that wish to enforce rules with less interference.
This overview shows how a lot is happening within a small time frame regarding the nation’s waterways and the protections in place to safeguard them for this generation and future ones.
People with interest in environmental sustainability should stay abreast of how things develop with the matters explained here and similar new decisions affecting the Earth.
(A previous version of this story was posted at The Ecologist.)