EDITORIAL: A victory for clean water (and beer)

York Dispatch Editorial Board

Beer breweries, sea turtles and coral reef lovers can relax a little: The Supreme Court isn't letting the Trump administration open a new loophole in the Clean Water Act.

The court last week ruled 6-3 in County of Maui vs. Hawaii Wildlife Fund that the 1972 law won't allow industries to forego getting a permit for discharging waste simply by stopping pipes short of releasing pollution directly into a navigable waterway.

The case involves the wastewater system of Maui County, Hawaii, which discharges 3 million to 5 million gallons of treated wastewater into groundwater every day. The groundwater moves directly into the Pacific Ocean half a mile away, where it is damaging coral reefs and the nearby Kahekili Beach. Environmental groups filed a lawsuit in 2012. 

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The county argued that since the discharge is not directly into a navigable waterway, it doesn't need a permit under the Clean Water Act. The court disagreed.

“We do not see how Congress could have intended to create such a large and obvious loophole in one of the key regulatory innovations of the Clean Water Act,” Justice Stephen Breyer wrote in the court's majority opinion.

That was the position the Environmental Protection Agency took when the case was first brought to court, with the EPA filing an amicus brief in the case with the U.S. Court of Appeals for the Ninth Circuit in 2016 reiterating the agency's "long-held position" that anyone discharging pollution into groundwater that then makes its way to a waterway must have a permit under the Clean Water Act.

FILE - This is a Jan. 27, 2020 file photo of The Supreme Court in Washington. The Supreme Court has ruled that juries in state criminal trials must be unanimous to convict a defendant, settling a quirk of constitutional law that had allowed divided votes to result in convictions in Louisiana and Oregon. The justices’ vote Monday overturned the conviction of a Louisiana man who is serving a life sentence for killing a woman after a jury voted 10-2 to convict him. (AP Photo/Mark Tenally)

The agency then agreed with another court that noted “it would hardly make sense for the (Clean Water Act) to encompass a polluter who discharges pollutants via a pipe running from the factory directly to the riverbank, but not a polluter who dumps the same pollutants into a man-made settling basin some distance short of the river and then allows the pollutants to seep into the river via the groundwater.”

But when Maui County petitioned the Supreme Court to hear the case in February 2019, the administration sided with Maui, arguing that there were state laws in place to deal with pollution that initially stopped short of waterways and therefore the federal permit was unnecessary. 

It is one of many ways this administration is poking holes in regulations that have been in place for decades and yet another instance where it is putting business and industry ahead of the needs of citizens and the environment. A few days before the court's ruling, the EPA put into place a sweeping rollback of the act that removes federal protection from many of the country's smaller waterways. It will no doubt continue its campaign to cut as many regulations as possible.

What does all of this have to do with beer?

The case was closely watched by craft breweries, who realized that if polluters are allowed to indirectly dump whatever they want into groundwater that will make its way to waters used by the brewers, that will change the flavors of their beers, according to CNBC. Some of them filed an amicus brief on the case last summer stating their interest in making sure the long-standing interpretation of the Clean Water Act stayed in place. 

The court's decision delivers a rebuke to the administration along with a needed win for those who want to make sure the sea turtles, beachgoers and craft brewers of the country remain safe.