PUBLISHED:July 29, 2019

Roady, Nowlin, Arata co-author, file scholars’ amicus brief with Supreme Court in Hawaii Clean Water Act case


Three Duke Law experts on environmental law have authored an amicus brief that has been filed with the Supreme Court in an important Clean Water Act case on behalf 37 scholars of environmental and natural resources law.

Professor of the Practice Steve Roady ’76, Clinical Professor Michelle Nowlin JD/MA ’92, and Lecturing Fellow Shannon Arata ’13, co-authored the law professors’ brief in support of the respondents in County of Maui v. Hawaii Wildlife Fund, et al, which was filed on July 19. The case is set for argument on Nov. 6.

The central issue in the case is whether the County of Maui, Hawaii, is required to obtain a permit for wastewater injection wells that release millions of gallons of treated sewage daily to the ocean through groundwater. The record in the case shows that this wastewater affects water quality and results in ecological damage, including to a nearby coral reef.

The brief argues that the plain language, context, and legislative history of the Clean Water Act establish this method of disposal as a discharge into navigable waters, which requires a permit.  It emphasizes that the statute prohibits both direct and indirect discharges of pollutants to this country’s waters.

“This case will either confirm existing protections against water pollution or significantly reduce them. It could have enormous implications,” said Roady, who spent more than three decades engaged in litigation and administrative advocacy enforcing the public health and environmental protections contained in federal statutes before joining the Duke faculty full time in 2016; he holds a secondary appointment as professor of the practice of marine science and conservation at the Nicholas School of the Environment and is a faculty fellow at the Nicholas Institute for Environmental Policy Solutions.

Nowlin, the supervising attorney in the Environmental Law and Policy Clinic who also holds a secondary appointment at the Nicholas School, said that a Court ruling that curtails the Clean Water Act would create a dangerous regulatory gap — and a slippery slope. “Pollution that reaches surface waters through indirect means could evade the permitting process,” she said. This would have implications for regulations addressing pollution from myriad sources such as concentrated animal feeding operations, coal ash storage ponds, and municipal stormwater.

If the County of Maui prevails, the brief argues, “a discharger could simply raise its outfall pipe above the surface of the water and argue that the discharge was to the air, and not directly into the water body. This would be an absurd result, and the Court should avoid it.”

Law professors provide an important objective voice in the case, said Nowlin. “We’re teaching people about the law, what it means, and what it’s designed to accomplish. It’s appropriate — and necessary — that we defend the proper use and interpretation of the plain language of the law. We need to insist that words matter.” — Claire Hermann