REGIONAL— A lawsuit originating in Hawaii, decided last week by the U.S. Supreme Court, is likely to reshape the regulatory framework for pollution discharges across the country, including on …
REGIONAL— A lawsuit originating in Hawaii, decided last week by the U.S. Supreme Court, is likely to reshape the regulatory framework for pollution discharges across the country, including on Minnesota’s Iron Range.
For years, the Minnesota Pollution Control Agency and Minnesota courts have generally declined to regulate mining discharges from Iron Range tailings basins, or other point sources of pollution, if the polluted water first traveled through the ground before reaching surface waters. They did so under the controversial legal theory that the Clean Water Act only applied to direct discharges of pollutants into surface waters, rather than to discharges that first travel through groundwater.
Indeed, last December, the Minnesota Court of Appeals rejected arguments by environmental groups that the MPCA had erred when it issued a water discharge permit, known as an NPDES permit, to U.S. Steel that failed to regulate polluted seepage from under Minntac’s tailings basin dam. Environmentalists and other courts in the U.S. had rejected such an exemption for discharges to groundwater, noting that such a reading of the law opened a giant loophole in the Clean Water Act that would allow companies to evade pollution rules merely by ending their pipes at any point short of a surface water.
This past week, the U.S. Supreme Court, in a 6-3 majority opinion, largely agreed with environmentalists in the case of County of Maui v. Hawaii Wildlife Fund. Conservative Chief Justice John Roberts and Trump-appointed Justice Brett Kavanaugh joined the court’s four liberal justices in deciding that discharges of pollutants into the ground are subject to regulation under the Clean Water Act when they are “the functional equivalent of a direct discharge.”
“It’s a game changer,” predicted Paula Maccabee, legal counsel for Duluth-based Water Legacy, who was among the litigants in the recent Minntac permit case. That case is now headed to the Minnesota Supreme Court, where the Maui decision could well loom large.
In the Hawaii case, Maui County had, for years, been injecting partially treated sewage into deep wells located about a half mile from the ocean. Water testing had documented that the sewage fairly quickly made its way to the ocean, but the county had argued that it didn’t matter since their discharges weren’t pumped directly to the ocean.
In ruling to the contrary, Maccabee said the nation’s highest court has provided much-needed clarity to the standard and she expects the decision will reverberate here in Minnesota, when the state Supreme Court hears the Minntac case later this year. In fact, the parties in that case had agreed to delay briefing on the case until after the U.S. Supreme Court ruled in the Maui case.
The Supreme Court’s decision was a surprise to some, particularly since the Trump administration’s own Environmental Protection Agency had sided with Maui County in arguing for the exemption for discharges to groundwater. But as the high court’s majority determined, “to follow the EPA’s reading would open a loophole allowing easy evasion of the statutory provision’s basic purposes. Such an interpretation is neither persuasive nor reasonable.”
The Supreme Court’s ruling did not determine whether Maui County will actually require a permit. Instead, it remanded that question back to the Ninth Circuit, which will have to determine if the facts in the Maui case align with a six-point test that the high court has now established. At the same time, the Supreme Court’s decision did modify the Ninth Circuit’s original ruling, which had adopted an even broader standard for determining whether discharges to groundwater require a permit. While some environmental groups were unhappy with that change, Maccabee said she’s pleased that the high court rejected the Trump administration’s “extreme” position and she’s confident that the Supreme Court’s position will have a major impact on future pollution regulation in Minnesota.
“It is of huge significance, not just to Minntac but mining in general. I think it’s broad enough to cover tailings basins here in Minnesota, especially when they put them on top of rivers and streams,” said Maccabee. “I think it would be hard to argue it’s not a functional equivalent of a direct discharge.”