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County of Maui, Hawaii v. Hawaii Wildlife Fund, et al.

Paid petition · United States Court of Appeals for the Ninth Circuit, No. 15-17447 · judgment March 30, 2018

Decided · April 23, 2020
Pre-decision estimate: 11% cert probability (95% interval 7%–16%)

Before the decision, about 2.7× the 4.1% base rate. The model weighted this up for a state or local-government petitioner, a Ninth Circuit decision below, and a circuit split argued in the petition.

Questions presented

Granted limited to question 1 presented by the petition. In the Clean Water Act (CWA), Congress differentiated between point source and nonpoint source pollution in controlling pollution of navigable waters. The CWA regulates point source pollution through permits, while nonpoint source pollution is controlled through federal oversight of state management programs and other non-CWA programs. This Court and several courts of appeals have read the CWA's line dividing point source and nonpoint source pollution to turn on whether pollutants are delivered to navigable waters by a point source. Parting with those cases, the Ninth Circuit concluded that point source pollution also includes pollutants that reach navigable waters by nonpoint sources so long as the pollutants can be "traced" in more than "de minimis" amounts to a point source. This holding expands CWA permitting to millions of sources previously regulated as nonpoint source pollution. The questions presented are:

  1. Whether the CWA requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater.

  2. Whether the County of Maui had fair notice that a CWA permit was required for its underground injection control wells that operated without such a permit for nearly 40 years.

Counsel of record

For petitioner
Elbert Lin
Hunton Andrews Kurth LLP

For respondent
David Lane Henkin
Earthjustice

Case

Conference history
Distributed for 3 conferences

Amicus briefs
4 cert-stage · 29 merits
(18 supporting pet./neither, 11 respondent)

Argument & decision

Argued November 6, 2019 — Elbert Lin · David L. Henkin. Audio and transcript

Decided April 23, 2020. Opinion by Breyer.

Proceedings

  1. May 26 2020
    JUDGMENT ISSUED.
  2. May 04 2020
    Motion to divide costs filed by respondents Hawaii Wildlife Fund, et al.
  3. Apr 23 2020
    Judgment VACATED and case REMANDED. Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Ginsburg, Sotomayor, Kagan, and Kavanaugh, JJ., joined. Kavanaugh, J., filed a concurring opinion. Thomas, J., filed a dissenting opinion, in which Gorsuch, J., joined. Alito, J., filed a dissenting opinion.
  4. Nov 06 2019
    Argued. For petitioner: Elbert Lin, Richmond, Va.; and Malcolm L. Stewart, Deputy Solicitor General, Department of Justice, Washington, D. C. (for United States, as amicus curiae.) For respondents: David L. Henkin, Honolulu, Haw.
  5. Oct 10 2019
    Letter of petitioner County of Maui, Hawaii filed.
  6. Oct 04 2019
    Letter of petitioner County of Maui, Hawaii filed.
  7. Oct 03 2019
    Letter of respondents Hawai'i Wildlife Fund, et al. filed.
  8. Sep 17 2019
    Record received from the U.S.C.A. 9th Circuit is electronic and located on PACER.
  9. Sep 17 2019
    Record received from the U.S.D.C. of Hawaii is electronic and located on PACER, with the exception of electronically filed Sealed documents.
  10. Sep 16 2019
    Record requested from the U.S.C.A. 9th Circuit.
  11. Sep 03 2019
    CIRCULATED
  12. Aug 23 2019
    Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED.
  13. Aug 12 2019
    Reply of petitioner County of Maui, Hawaii filed.
  14. Jul 19 2019
    Brief amici curiae of Law Professors filed.
  15. Jul 19 2019
    Brief amicus curiae of Constitutional Accountability Center filed.
  16. Jul 19 2019
    Brief amici curiae of Upstate Forever and Savannah Riverkeeper filed.
  17. Jul 19 2019
    Brief amici curiae of Former EPA Administrators filed.
  18. Jul 19 2019
    Brief amicus curiae of Trout Unlimited filed.
  19. Jul 19 2019
    Brief amici curiae of Former EPA Officials filed.
  20. Jul 19 2019
    Brief amicus curiae of Craft Brewers filed.
  21. Jul 19 2019
    Brief amici curiae of States of Maryland, et al. filed.
  22. Jul 19 2019
    Brief amici curiae of Anderson County, South Carolina and Decatur County, Tennessee filed.
  23. Jul 19 2019
    Brief amici curiae of Aquatic Scientists and Scientific Societies filed.
  24. Jul 19 2019
    Brief amicus curiae of Fond du Lac Band of Lake Superior Chippewa filed.
  25. Jul 12 2019
    Brief of respondents Hawai'i Wildlife Fund, et al. filed.
  26. Jul 08 2019
    SET FOR ARGUMENT on Wednesday, November 6, 2019.
  27. Jun 26 2019
    Letter to the Court of Hawai'i Wildlife Fund, et al. not accepted for filing. (July 12, 2019 - Not the type of letter to be submitted through the electronic filing system)
  28. Jun 25 2019
    Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed.
  29. May 16 2019
    Brief amicus curiae of Energy Transfer Partners, L.P. filed.
  30. May 16 2019
    Brief amici curiae of National Association of Clean Water Agencies, et al. filed.
  31. May 16 2019
    Brief amici curiae of United States Senators filed.
  32. May 16 2019
    Brief amicus curiae of United States filed.
  33. May 16 2019
    Brief amici curiae of Wychmere Shores Condominium Trust, et al. filed.
  34. May 16 2019
    Brief amici curiae of National Conference of State Legislatures, et al. filed.
  35. May 16 2019
    Brief amici curiae of Edison Electric Institute, et al. filed.
  36. May 16 2019
    Brief amici curiae of Washington Legal Foundation and Allied Educational Foundation filed.
  37. May 16 2019
    Brief amici curiae of National Federation of Independent Business Small Business Legal Center,et al. filed.
  38. May 16 2019
    Brief amici curiae of Kinder Morgan Energy Partners, L.P. and Plantation Pipe Line Company, Inc. filed.
  39. May 16 2019
    Brief amicus curiae of National Association of Home Builders of the United States filed.
  40. May 16 2019
    Brief amicus curiae of Pacific Legal Foundation filed.
  41. May 16 2019
    Brief amicus curiae of Federal Water Quality Coalition filed.
  42. May 16 2019
    Brief amici curiae of State of West Virginia, 19 other States, and the Governors of Kentucky and Mississippi filed.
  43. May 16 2019
    Brief amici curiae of Water Systems Council and The National Groundwater Association filed.
  44. May 16 2019
    Brief amici curiae of Florida Water Environmental Association- Utility Council; Florida Rural Water Association; Florida Electric Power Coordinating Group- Environmental Committee filed.
  45. May 15 2019
    Brief amicus curiae of Chamber of Commerce of the United States of America filed.
  46. May 15 2019
    Brief amici curiae of Agricultural Business Organizations filed.
  47. May 09 2019
    Joint appendix filed. (Statement of cost received)
  48. May 09 2019
    Brief of petitioner County of Maui, Hawaii filed.
  49. Apr 04 2019
    Blanket Consent filed by Respondents, Hawai'i Wildlife Fund, et al.
  50. Mar 18 2019
    Joint motion to extend the time to file the briefs on the merits is granted. The time to file the joint appendix and petitioner's brief on the merits is extended to and including May 9, 2019. The time to file respondents' brief on the merits is extended to and including July 12, 2019.
  51. Mar 05 2019
    Joint motion for an extension of time to file the briefs on the merits filed.
  52. Feb 19 2019
    Petition GRANTED limited to Question 1 presented by the petition.
  53. Feb 04 2019
    DISTRIBUTED for Conference of 2/15/2019.
  54. Jan 30 2019
    Letter of January 28, 2019, from counsel for petitioner received.
  55. Jan 14 2019
    DISTRIBUTED for Conference of 1/18/2019.
  56. Jan 08 2019
    Second supplemental brief of respondents Hawai'i Wildlife Fund, et al. filed.
  57. Jan 07 2019
    Supplemental brief of petitioner County of Maui, Hawaii filed.
  58. Jan 03 2019
    Brief amicus curiae of United States filed. VIDED.
  59. Dec 03 2018
    The Solicitor General is invited to file a brief in this case expressing the views of the United States on or before 4 p.m., Friday, January 4, 2019.
  60. Nov 20 2018
    Supplemental brief of respondents Hawai'i Wildlife Fund, et al. filed. (Distributed)
  61. Nov 07 2018
    DISTRIBUTED for Conference of 11/30/2018.
  62. Nov 06 2018
    Reply of petitioner County of Maui, Hawaii filed.
  63. Oct 23 2018
    Brief of respondents Hawai'i Wildlife Fund, et al. in opposition filed.
  64. Oct 05 2018
    Supplemental brief of petitioner County of Maui, Hawaii filed.
  65. Oct 01 2018
    Brief amici curiae of Association of California Water Agencies, et al. filed.
  66. Oct 01 2018
    Brief amici curiae of State of West Virginia, et al. filed.
  67. Oct 01 2018
    Brief amicus curiae of Pacific Legal Foundation filed.
  68. Sep 27 2018
    Motion to extend the time to file a response is granted and the time is extended to and including October 31, 2018.
  69. Sep 24 2018
    Motion to extend the time to file a response from October 1, 2018 to October 31, 2018, submitted to The Clerk.
  70. Aug 27 2018
    Petition for a writ of certiorari filed. (Response due October 1, 2018)
  71. Jun 04 2018
    Application (17A1343) granted by Justice Kennedy extending the time to file until August 27, 2018.
  72. May 31 2018
    Application (17A1343) to extend the time to file a petition for a writ of certiorari from June 28, 2018 to August 27, 2018, submitted to Justice Kennedy.
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