This is the Supreme Court justices (in black) questioning Mayor Victorino’s lawyers (in red), slightly condensed.
Coral reef image courtesy of Caitlin Maratea, owner of Banyan Tree Divers in Lahaina.
Elbert Lin
Your Honor, I think if it still goes through the groundwater, the — the question under the statute is what is the — what is the conveyance, what is the thing that carries and delivers the pollutants.
I think even if it’s forcefully put into the groundwater, the groundwater is what’s carrying it. Now I can imagine, Your Honor, scenarios as we discuss in our brief where you’ve got, say, a point source, a pipe that’s very close to the water’s edge and — and expels the pollutants into the water.
The thing that’s carrying it, the last conveyance in that factual scenario, would be the pipe.
Justice Stephen G. Breyer
So what happens if you just take the pipe and you decide what we’ll do is we’re going to end the pipe 35 feet from the river or from the ocean or something? Now you know perfectly well that it’ll drip down into the ground and it’ll be carried out into the navigable water. In your theory, that isn’t covered?
Elbert Lin
In that scenario, Your Honor, the land is the conveyance and that pollution would be regulated under the nonpoint source —
Justice Stephen G. Breyer
Well, no, the conveyance is the groundwater that is underneath the land into which the pipe drips the pollutant.
Elbert Lin
— then the groundwater is what’s carrying and delivering the pollutants —
Justice Stephen G. Breyer
All right, but then what we have is, I take it, an absolute road map for people who want to avoid the point source regulation.
All we do is we just cut off the — cut off the — the pipes or whatever, five feet from the ocean or five feet from the navigable stream or five feet from — you see? You understand the problem. What I’m looking for in this case is what’s a standard that will prevent evasion, which I’m not — I don’t see how yours prevents evasion.
Justice Elena Kagan
Excuse me, Mr. Lin. Congress wanted the point source program to do something.
The Congress wanted point sources that were discharging pollutants to receive a permit before they did so.
And I think what Justice Breyer is saying is that nobody would ever have to go through that process of getting a permit if they knew that they could do something like what Justice Breyer was suggesting, just stop the pipe five feet before the ocean.
Justice Sonia Sotomayor
— but that’s the problem, isn’t it? Because it presumes the state will regulate, and some states don’t.
So what you’re doing is cutting off permitting because you’re limiting the word “to” — or — or morphing the word “to navigable waters” and changing it into “into navigable waters.” And that’s what Justice Scalia looked at was the plain text and said “to” is different than “into.” And so, for us, the question, I believe, is, do you read the plain language and does it say from a point source, it’s the well, to the ocean? It can be traced, yes.
I think the words are pretty clear.
Elbert Lin
A few answers to that, Your Honor.
Justice Sonia Sotomayor
To — to — to accept your meaning, we have to transform “in” into “into.”
Elbert Lin
Your Honor, if I could start with the statutory language, I think the wells as an example is important to address, but if you — I think if you look at the words “addition from any point source,” and you substitute in, for point source, pipe, which is in the statute and nobody disagrees is a — is a point source, addition to a lake, to an ocean, to a river, a navigable water, an addition to a lake of pollutants from a pipe, addition to a lake of sewage water from a pipe. I think, I submit, Your Honor, that the ordinary understanding of that, what one pictures in one’s mind is a pipe that is next to the water, not a pipe that is a mile away.
— that has delivery in it and it’s — it’s being associated with conveyance, which is a thing that transports, carries, and delivers.
Justice Brett M. Kavanaugh
That sounds like the directly argument that Justice Scalia’s opinion rejected.
Elbert Lin
Your Honor, we don’t think it can be found in the text because we don’t read “from” — we don’t think Congress intended “from” to mean causation.
So, one, we don’t think it can be found in the text.
Two —
Justice Elena Kagan
But that would be a normal way of reading the word “from,” wouldn’t it; in other words, to say, to decide whether something is from something else, you have to look as to whether it’s from something else? (Laughter.)
Malcolm L. Stewart
If it goes five feet to the shore and the pollutant travels onto the land, travels across the land and into the water, you know, through its own force, it spews out of the pipe or simply through the force of gravity because you’re on an incline, we would say that’s covered.
Justice Elena Kagan
So, if the pipe is on the — is on the land and spews onto the land, it’s regulated and you need a permit; but, if the pipe is underground, it’s not and you don’t need a permit?
Malcolm L. Stewart
You would not need a — you would not need a NPDES permit because you would not be discharging onto — you would not be discharging to the navigable water —
Justice Stephen G. Breyer
It’s the same problem
Justice Stephen G. Breyer
Just if you have a reaction to this.
If I don’t accept — I’m not saying — but if I don’t accept because I think these two programs are quite different, ground source and point source, different purposes, et cetera, and I’m worried about the evasion or area, you see, that we talked about first. So it seems to me this case, in my mind at the moment, is what’s the standard for separating the sheep from the goats? And you’re basically saying the Ninth Circuit’s way too broad and so are they, so we come up with zero, okay? Close to zero. Now the best — I want to try out one thing, if you think — have any reaction to it. If it’s — it’s regulated or under this, if it’s the functional equivalent of a direct discharge. Now the reason that I put that is because that leaves a lot of room for the EPA to write regulations, to decide what is the functional equivalent of a direct discharge.
And it’s narrower than the Ninth Circuit.
You want to — if you have to have a reaction to that, have it.
Malcolm L. Stewart
I still have concerns about any approach that could be interpreted as saying if the pollutants make it to the navigable water, then it’s covered.
Justice Sonia Sotomayor
Why are you doing what you’re doing? This is fairly traceable to you in large quantities.
The state didn’t control you.
What regulations are there in place that do?
— I mean the — the polluters.
What are they — what is being done to stop them?
If they followed —
— all the laws, and they still are polluting, they’re getting away with it.
So something failed.
The preventive measures of this law were not followed and something failed.