On December 3, 2018, the Supreme Court of the United States issued an order requesting the Solicitor General to weigh in on a case related to the legal status of some types of groundwater.1 The catch? The Court’s order comes with an unusually expedited one-month deadline, a move that the Court rarely takes. This surprising action foreshadows the potential for an earlier-than-expected decision on an issue with deep ramifications for those in the energy industry.
Specifically, the Court aims to address a circuit split among the 4th, 5th and 9th Circuits in determining whether only direct discharges to “navigable waters” (rivers, lakes and other surface waters, for example) are covered or whether groundwater that is “hydrologically connected to surface water” is subject to Clean Water Act (CWA) pollution discharge requirements.2 Groundwater—that is, water held beneath the soil or in between rock structures—does not fall under CWA jurisdiction. Nevertheless, the U.S. Environmental Protection Agency (EPA), for many years, maintained that pollutants that flow with a direct and immediate hydrologic connection through groundwater into surface waters are properly regulated under the CWA.3 Environmentalists agree with EPA’s long-standing position, while many in industry say that the agency is reaching beyond its scope.
EPA, meanwhile, has been actively considering the issue itself, leading at least one petitioner to insist that the Court refrain from hearing the case until after the agency finalizes its decision.4 Despite this pleading, the Court’s desire to potentially rule on the issue during its current term signals that the time to cross this bridge is nearly upon us.
1 Court Order, Docket No. 16-268 (Dec. 3, 2018).
2 Brief of Update Forever, et al, at 2, available at https://www.supremecourt.gov/DocketPDF/18/18-268/67721/20181023112439839_18-268%20Brief%20in%20Opposition.pdf.
3 Id. at 1.
4 See id. at 28 (citing 83 Fed. Reg. 7,126, 7,126 (Feb. 20, 2018)).