2020 Environmental Real Estate IssuesThe United States Supreme Court has requested the federal government file a brief in Kinder Morgan v. Upstate Forever and City of Maui v. Hawai’i Wildlife Fund.  Interpretation of the Clean Water Act (CWA) is an issue in both cases.  According to the Court’s docket, briefs requesting and opposing that the Court hear the cases were distributed to the justices on November 30.  On the next business day, December 3, 2018, the Court “invited” the Solicitor General to “express the views of the United States” in these cases by January 4, 2019.

Hydrological Connection Theory
The government will express its views on the “hydrological connection theory,” which holds the CWA extends liability to pollution that reaches surface water via groundwater.  In both cases requesting appeal, the lower courts accepted the “hydrological connection theory,” although lower courts in other cases have rejected it.

The government may also express views on the meaning of the term “point source” in the CWA and indicate if rejecting the “hydrological connection theory” will impair its ability to enforce the CWA.  Many expect this administration’s Solicitor General will advocate rejecting the theory and state that doing so will not impair enforcement.

Court Has Yet to Decide to Hear the Appeal
The Court receives thousands of requests to hear appeals every year, and only a small fraction is actually heard.  In most cases, the Court refuses to hear the appeal and the lower court ruling stands.

While the court has yet to decide if it will hear the appeal of these cases, requesting the view of the government is an indication that several members may be interested in hearing hear the appeal, but want to know the government’s view before deciding.

The court has no timeframe in which it must decide if it will hear the appeal of these cases, but the Court will probably decide if it will hear the appeal before the Court’s term ends this summer.