Time Keeps on Slippin', Slippin', Slippin', Into the Future -- Another Pre Maui Case Goes On and On

Almost eight years ago two NGOs sued the New York State Park Department alleging, among other things, that discharges from septic systems at State Parks on Long Island violated the Federal Clean Water Act and the Federal Resource Conservation and Recovery Act.  As is common in such cases, the septic systems had the state permits the Federal and State Governments thought they needed but not a permit under the NPDES provisions of the Federal Act.

In 2019, days before the Supreme Court granted certiorari in Maui v. Hawaii Wildlife Fund, a Magistrate Judge recommended a trial based on the Ninth Circuit's "fairly traceable" test in Maui.  After the Supreme Court took its turn at determining the scope of the Clean Water Act last year, the New York District Court Judge decided the Magistrate Judge should reconsider his decision in light of the Supreme Court's seven factor "functional equivalence" test.  Why, or even whether, the Judge really thought that was necessary is a mystery.

Today Bloomberg Environment reports that the Magistrate Judge has confirmed that a trial is necessary to apply the Supreme Court's Maui test (and also to determine whether septage from the Parks is a hazardous waste posing a substantial present or potential hazard to human health or the environment).  Assuming the Judge adopts the Magistrate's recommendation, some time in the next year or so there will be a trial of this already very old case, likely followed by an appeal to the Second Circuit.  In the meantime, as Mr. Miller sang in my youth, time keeps on slippin', slippin', slippin' into the future, confusion will continue to reign, and we'll be left to wonder when Congress will end what is most certainly the longest running controversy in environmental law.