County of Maui, Hawaii v. Hawaii Wildlife Fund

In County of Maui, Hawaii v. Hawaii Wildlife Fund the Supreme Court held 6-3 that when there is a “functional equivalent of a direct discharge” from a point source to navigable waters an appropriate permit is required under the Clean Water Act.

The Clean Water Act forbids the “addition” of any pollutant “from a point source” to “navigable waters” without a National Pollutant Discharge Elimination System (NPDES) permit. In this case the County of Maui wastewater reclamation facility pumps treated wastewater (pollutants) from wells (point sources) which travels through groundwater to the ocean (a navigable water). Hawaii Wildlife Fund claimed Maui should have obtained an NPDES permit.

Maui argued that an NPDES permit is only required when a point source or series of point sources is “the means of delivering pollutants to navigable waters.” In this case groundwater lies “between the point source [the wells] and the navigable water [the ocean].” The State and Local Legal Center (SLLC) filed an amicus brief supporting Maui’s position.

Hawaii Wildlife Fund agreed with the Ninth Circuit “that the permitting requirement applies so long as the pollutant is ‘fairly traceable’ to a point source even if it traveled long and far (through groundwater) before it reached navigable waters.”

The Supreme Court, in an opinion written by Justice Breyer, rejected both positions holding instead that a permit is required when there is a functional equivalent of a direct discharge. The Court concluded that the question in this case came down to the definition of “from” in the phrase “from a point source.”


The Ninth Circuit’s interpretation of “from” was too broad, the Court opined, because it would lead to “surprising, even bizarre, circumstances, such as for pollutants carried to navigable waters on a bird’s feathers.” The Court also expressed “doubt that Congress intended to give EPA the authority to apply the word ‘from’ in a way that could interfere as seriously with States’ traditional regulatory authority—authority the Act preserves and promotes—as the Ninth Circuit’s ‘fairly traceable’ test would.”


The Court likewise rejected as too narrow Maui’s argument that if a pollutant travels from a point source through groundwater before reaching navigable water no NPDES permit is required. Justice Breyer offered an example of a point source pipe that spews pollution directly into coastal waters. He asked, under Maui’s interpretation, “why could not the pipe’s owner, seeking to avoid the permit requirement, simply move the pipe back, perhaps only a few yards, so that the pollution must travel through at least some groundwater before reaching the sea?”


According to the Court, the functional equivalent of a direct discharge test “best captures, in broad terms, those circumstances in which Congress intended to require a federal permit.”


The Court offered seven examples of factors courts could consider to determine if the functional equivalent of a direct discharge has in fact occurred including: “(1) transit time, (2) distance traveled, (3) the nature of the material through which the pollutant travels, (4) the extent to which the pollutant is diluted or chemically changed as it travels, (5) the amount of pollutant entering the navigable waters relative to the amount of the pollutant that leaves the point source, (6) the manner by or area in which the pollutant enters the navigable waters, (7) the degree to which the pollution (at that point) has maintained its specific identity.” According to the Court, generally time and distance will be the most important factors.


The Supreme Court sent this case back to the lower court to apply its newly articulated test.

J.G. Andre Monette, Shawn Hagerty, and Rebecca Andrews of Best Best & Krieger, wrote the SLLC amicus brief which the following national organizations joined:  National Conference of State Legislatures, National Association of Counties, National League of Cities, International City/County Management Association, and the International Municipal Lawyers Association.

New York State Rifle & Pistol Association v. New York City

In a two-page per curiam (unauthored) opinion in New York State Rifle & Pistol Association v. City of New York, the Supreme Court held that a challenge to New York City’s rule disallowing residents to transport firearms to a second home or shooting range outside of the city is moot. The State and Local Legal Center (SLLC) filed an amicus brief arguing the rule was constitutional.

The Supreme Court concluded the case was moot because after the Court agreed to hear it “the State of New York amended its firearm licensing statute, and the City amended the rule so that [residents] may now transport firearms to a second home or shooting range outside of the city, which is the precise relief . . . requested.”

The opinion pointed to two unanswered questions in this case which the lower courts have to resolve.

First, New York State Rifle & Pistol Association argues the “new rule may still infringe their rights” by preventing stops for coffee, gas, food, etc. on the way to second homes or shooting ranges outside of the city. The City claims such “routine stops are entirely permissible under the new rule.” The Supreme Court didn’t resolve the issue quoting precedent which explains “where the mootness is attributable to a change in the legal framework governing the case, and where the plaintiff may have some residual claim under the new framework that was understandably not asserted previously, our practice is to vacate the judgment and remand for further proceedings in which the parties may, if necessary, amend their pleadings or develop the record more fully.”

Second, New York State Rifle & Pistol Association asked for damages with respect to the old rule for the first time “well into the litigation in this Court.” On remand the lower court may decide whether the Association is still able to add a damages claim.

Justice Alito wrote a lengthy dissent which Justice Gorsuch joined in full and Justice Thomas joined in part. Justice Alito conceded that the New York State Rifle & Pistol Association got most of what it wanted when the law changed, but stated that is not the test for mootness. According to the dissent case “becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.” The dissent also concluded the it wasn’t a “close question” that New York City’s rule violated the Second Amendment.

Justice Kavanaugh wrote a concurring opinion agreeing that the case was moot and additional claims should be decided by the lower courts. He also agreed with the dissent that some lower court cases upholding gun regulations may have not have been decided correctly.

The SLLC amicus brief argued New York City’s former rule is constitutional because it only imposes a modest burden on those who wish to “bear” arms in public places. It also agreed new complaints with the revised rule should be heard by the lower courts instead of the Supreme Court.

Lawrence Rosenthal, Chapman University, Fowler School of Law wrote the SLLC amicus brief which the following organizations joined:  National League of Cities, U.S. Conference of Mayors, and the International Municipal Lawyers Association.

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