The Reach of the Clean Water Act

By Ally Romero

The County of Maui v. Hawaii Wildlife Fund case has produced a fascinating argument that is currently pending before the Supreme Court. The case considers the reach and limitations of the Clean Water Act, and presents a debate on how the legislation applies to pollutants that contaminate the ocean by traveling through groundwater. Adam Liptak, a writer for the New York Times, has written a piece that focuses on some of the liveliest aspects of that debate. Liptak, Adam, Supreme Court Weighs Limits on Water Pollution Law, The New York Times, available at:

For background, the case centers on a wastewater treatment plant on Maui that has used injection wells to dispose of sewage by pumping it into groundwater. This groundwater is hydrologically connected to the Pacific Ocean, and the pollution thus eventually drains into the ocean, creating a potential threat to the marine environment and beach users. The Clean Water Act stipulates that “point sources” of pollution must obtain permits or else polluters can be subject to fines upwards of $50,000. Elbert Lin, counsel for Maui County, has argued that his client does not need to obtain a permit since the pollution passed through groundwater, and groundwater is not a point source. He stated that, “The law only applies when the point source is the means of delivering pollutants to navigable waters.” Another lawyer for Maui County presented an illustrative analogy. He said, “If at my home I pour whiskey from a bottle into a flask and then I bring the flask to a party at a different location and I pour whiskey into the punch bowl there, nobody would say that I had added whiskey to the punch from the bottle.” A lawyer for the environmental groups countered with another analogy by saying, “When you buy groceries, you say they came from the store, not from your car, even though that’s the last place they were before they entered your house. Likewise, the millions of gallons of treated sewage entering the Pacific Ocean off West Maui every day come from petitioner’s wells under any understanding of the term.” 

A number of justices expressed concern that a narrow interpretation of the Clean Water Act would allow polluters to evade the goals of the legislation. However, they also seemed bothered by how difficult it would be in other situations to determine the source of the pollution, if many different people could be the culprit. Chief Justice Roberts expressed his dissatisfaction by saying, “So all you have to do is get a bunch of neighbors and all put the septic tanks in, and then you’re scot-free? … It’s an Agatha Christie novel. You have 20 people and they shoot the gun at the guy at the same time.”

While this is a heavily debated topic, I can understand the logic from both County of Maui and the Hawaii Wildlife Fund. However, the arguments put forth by the environmental groups are especially persuasive. Counsel for Maui County relies on the definition of a point source as “any discernible, confined and discrete conveyance, including pipes, tunnels, and wells” as well as another provision that bars “any addition of any pollutant to navigable waters from any point source.” A decision that is based on those provisions exactly may be in line with the text of the Clean Water Act as it exists today, but may not necessarily be in line with the intent. Some have pointed out that since this litigation has been pending, the coral reef in the area of the ocean off West Maui has started to die as a result of this pollution. Allowing polluters to harm the environment without suffering any consequences, based on a technicality, seems contradictory to the goals of the Clean Water Act. Chief Justice Roberts’ point about struggling to discern who is to blame in future situations is surely relevant as this decision may set future precedents. However, in the case that is before the court now, it is obvious who and what is to blame. I will not try and predict how the Supreme Court will decide this matter, but I do think that in situations such as this, where the environment is being damaged and experts can trace that damage directly to certain pollution, those polluters should have to obtain permits or pay the necessary fines per the Clean Water Act. This approach seems to conform more to the intent of the Clean Water Act, which is to restore and maintain the integrity of national waters. 

How Will Climate Change Impact the Winemaking Industry?

By Ally Romero.

As a particularly sensitive agricultural product, wine is a good marker for the effects climate change will have on rural traditions that have been in place for centuries. One interesting perspective of these changes is offered in a recent New York Times article by Eric Asimov, Asimov, Eric, How Climate Change Impacts Wine, The New York Times, available at:

One undeniable change is that the wine map is growing. Winemakers are now able to grow grapes in areas that were once considered too cold for fine wine. A great example of this is in England. Thirty years ago, an English sparkling wine did not exist. Today, England is home to a warmer climate and a booming sparkling wine industry. The soil was not a constraint. In fact, the chalky-white soil found in England is almost identical to the soils of the Champagne region of France and has been present in England for centuries. Now that the climate has warmed, winemakers are able to actually take advantage of the soil, and companies like Taittinger and Vranken-Pommery Monopole have invested in English vineyards. In fact, producers are now able to plant vineyards at altitudes that were once inhospitable to growing wine grapes. At higher altitudes, heat lasts for shorter periods of time, and temperatures at night tend to be colder compared to lower altitudes. In Spain, producers are planting vineyards at altitudes of 3,000 – 4,000 feet, whereas twenty-five years ago that would have been an impossibility. 

Climate change is not all beneficial for the wine industry, though. In some regions, producers are having to rethink the type of grapes that they or their family have grown for centuries and switch to varieties that will thrive in the changing climate. This process has already begun in some areas. For example, in Bordeaux (a region known for its cabernet sauvignon) wine makers have been looking at seven additional grapes to determine if they can help mitigate the effects of climate change. They will be used in small quantities only and closely monitored to account for their effectiveness. Further, climate change has made weather more unpredictable than ever before. Even the most experienced farmers no longer know what to expect. Producers note that hail has posed threats, unprecedented rain is now occurring in the summer, while winters have been dry. Moreover, increased moisture in the summer has caused vine pests to reproduce rapidly, creating four cycles of pests a year rather than the traditional two. In California, access to water is not always guaranteed, a challenge exacerbated by more frequent droughts. This has forced growers to consider either putting their existing grapevines on drought-resistant rootstocks, or using other grapes entirely.

In a nutshell, climate change is profoundly changing the wine industry. Some climate effects are widening the market and allowing new regions to benefit from producing more and better wine. Other changes are threatening the vitality of grapes that have thrived for centuries. For winegrowers, however, there is probably one overall lesson: success in the wine industry no longer seems dependent on how experienced a farmer is or how long a family has been in the business. Instead, the ability to adapt to changing conditions may be more important than ever to surviving and succeeding in the wine industry. In the Burgundy region, for example, producers have installed a system aimed at preventing the formation of hailstones by which particles of heated silver iodide are shot in the direction of storm clouds. Some farmers are covering their vines in bird netting to protect against the changes. Others have begun to employ environmentally friendly tactics in an effort to reduce their carbon footprint. California growers have started training owls and falcons to control pests, eliminating the need to use harsh pesticides. Incorporating innovative solutions like those listed above may be the key to achieving prosperity. 

Business is inherently rooted in competitiveness, so on the one hand it makes sense that in order to succeed, one needs to continuously work to modify and improve one’s product. However, on the other hand, it’s interesting to note that this need for adjustment is now embedded in climate change. While this might be a fairly new concept in the wine industry, the laws of success in business will not waiver. As time progresses, climate change will continue to impact the wine making process and serve as a differentiator between those who can adjust and succeed and those who cannot.