On November 6, Henkin heads to the nation’s highest court in the land to settle a decades-long legal dispute involving a wastewater treatment plant, its pollution discharges, and a partially dead coral reef in Hawaiʻi. But the implications of this case stretch far beyond the sandy shores of Hawai’i. The Supreme Court’s decision will determine whether water all over America remains protected from pollution discharges. To protect everyone’s right to clean water, he’ll face off against the country’s most notorious polluters. If the court’s opinion doesn’t go Earthjustice’s way, it could have disastrous repercussions for clean water across the country.
The fate of the nation’s waterways rests in Henkin’s hands.
He’ll have 30 minutes to make his case.
The Supreme Court case formally named Hawaiʻi Wildlife Fund v. County of Maui will be argued in front of nine justices cloaked in coal black robes, surrounded by thick, red- velvet curtains and bone-white stone pillars. The stark, solemn setting inside couldn’t be more different from where the case originates, in West Maui.
Each year, thousands of swimsuit-clad tourists flock to Kahekili Beach Park, where they snorkel in the clear, turquoise waters for the chance to swim alongside sea turtles and tropical reef fish and spot sea stars, sea urchins, and coral all colors of the rainbow.
But bubbling up beneath Kahekili’s famous reef is a dirty secret.
Kahekili Beach Park is home to sea turtles and tropical fish, but its famous reef is being damaged by wastewater.
LEFT: COURTESY OF DON MCLEISH; RIGHT: MARLEY RUTKOWSKI
In 1982, the county of Maui’s wastewater treatment facility began discharging treated sewage into groundwater that eventually makes its way into Kahekili’s waters and the Pacific Ocean. Though treated, the wastewater contains dangerous levels of phosphorus and nitrogen, which promote excessive growth that smothers the reef, turning its vibrant colors to a dull, lifeless brown.
For years, Maui community groups complained to officials about the wastewater discharges and damage to the reef. Several studies backed up their concerns including a 2011 Environmental Protection Agency (EPA) -funded study showing conclusively that the sewage flows end up in the ocean, and a 2017 study linking the sewage discharge to serious and ongoing harm to Kahekili’s reef.
Still, the county did nothing.
Though it knew the pollution reached the ocean, the county’s executive branch argues it’s not legally required to do anything about it because the pollution doesn’t flow directly into the ocean, but reaches the ocean indirectly through groundwater. The Clean Water Act, it argues, only covers direct discharges.
“According to Maui County, a polluter can avoid the law by taking a pipeline that discharges waste directly into the ocean and cutting it ten feet short of the shoreline,” says Henkin, who sued the county on behalf of four Maui community groups in 2012. “At the end of the day, waste from the pipeline is still polluting the water. And, under the county’s twisted logic, the polluter would get off scot-free.”
In 2014 and again in 2018, the courts rejected the county’s argument. The district court judge said accepting it would “make a mockery” of the Clean Water Act’s intentions.
After the rulings, Earthjustice and its clients tried to convince the county to fix the problem rather than pay millions of dollars in legal penalties for breaking the law. There even existed a straightforward solution: Use the excess wastewater for irrigation, a potential boon for dry West Maui.
“Our clients are all Maui residents who want their government to do the right thing,” says Henkin. “We never had an interest in having the county pay huge fines to the U.S. Treasury. After all, the county’s money is our clients’ taxpayer dollars.”
More than 16,000 residents petitioned the local government to settle, and the county council even voted to do so. But the mayor’s office declined to sign off, and the two bodies are still at odds over who gets the final call. In the meantime, the case proceeds at the Supreme Court.
The high court agreed to review the county’s case last February. A who’s who of dangerous polluters, including fossil fuel and industrial agriculture groups, quickly signed on to back the county and its dangerous position. The U.S. EPA under President Trump has also sided with the county, reversing three decades of agency guidance, under Republican and Democratic administrations, that the Clean Water Act regulates discharges of pollution that reach our nation’s waters through groundwater.
These groups want to create a loophole in the Clean Water Act, allowing dirty industries to pollute U.S. waters as long as the pollution isn’t directly discharged into a water source.
It would be a free-for-all for dangerous polluters.
With nearly 30 years of litigation experience, Henkin is no stranger to high stakes cases. During his time at Earthjustice, he’s frequently and successfully sued both the U.S. Army and the Navy; secured a rare temporary restraining order against a logging company intent on chopping down the habitat of the endangered Hawaiian crow; and set critical legal precedent designating habitat for endangered and threatened plants found only on Hawaiʻi.
Working closely with communities in Hawaiʻi keeps Henkin (second from right) inspired and engaged.
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