The Supreme Court handed down sixteen opinions in March and April, including the New York gun rights case (spoiler alert: the case was moot), the ACA reimbursement case (8-1 ruling that the government must pay health insurers as promised for taking on high-risk patients) and an interesting copyright case (with the unexpected lineup of the Chief Justice and Justices Sotomayor, Kagan, Gorsuch, and Kavanaugh in the majority and Justices Thomas, Ginsburg, Breyer, and Alito in dissent). Although that sounds somewhat impressive, only one of the major cases (at least those identified as major by SCOTUSblog) has been decided, and that is New York Rifle, the moot gun rights case. Twenty-six (26) remain to be decided, all in June (maybe early July) and every major case, ten (10) of them.
It’s going to be a June like perhaps no other. My focus in future posts will be on the major cases as they are decided.
In this post, I will focus just a bit on the copyright case, but my main focus is on a case decided on April 23 which left intact the Clean Water Act.
Georgia v. Public.Resource.Org Inc., No. 18-1150 [Arg: 12.2.2019 Trans./Aud.; Decided 4.27.2020]
Holding: Under the government edicts doctrine, the annotations beneath the statutory provisions in the Official Code of Georgia Annotated are ineligible for copyright protection.
Every state has a set of laws that govern that state. They are collected into a code, which is a collection of the laws, organized into chapters and sections, that track basic concepts in the law, such as criminal or family law or environmental law. When you research a state’s law, you go to the code and read those sections that you are looking for.
Since a series of three Supreme Court cases in the 19th century, the law itself (as well as court opinions) cannot be copyrighted. The Cort held that as a matter of public policy, these very public items could not be controlled as a copyrighted work is,. But if you pick up the state’s code annotated, you will find not only the text of the statute, but a series of annotations–comments on the statute such as amendments and cases interpreting the statute–that are created by researchers, typically legal publishers who put the code annotated (law and annotations) together for publication. Question: If the law itself cannot be copyrighted, can the annotations, which appear with it, be copyrighted?
By a vote of 5-4, the Court that the annotations are ineligible for copyright protection. The Chief Justice and Justices Sotomayor, Kagan, Gorsuch, and Kavanaugh were in the majority and Justices Thomas, Ginsburg, Breyer, and Alito were in dissent. (This is a great example of why the votes in certain cases–say, intellectual property–don’t fall along the typical “liberal/conservative” spectrum).
Under the “work-for-hire” doctrine in the copyright law, Georgia ordinarily would own the copyright in those annotations. (paying a legal publisher to generate the animations). All agree that the annotations are sufficiently original to warrant copyright protection in ordinary circumstances. Thus, absent some special rule rooted in Georgia’s status as a government entity, Georgia’s ownership of those annotations would allow it to prevent entities like PRO from copying and disseminating them without Georgia’s permission.
The opinion of Chief Justice John Roberts for a 5-4 majority holds that the “government edicts” doctrine, long recognized as preventing copyright protection for judicial opinions and statutes, also applies to annotations of those statutes that are prepared at the behest of the legislature. “If judges, acting as judges, cannot be ‘authors’ because of their authority to make and interpret the law, it follows that legislators, acting as legislators, cannot be either.” Thus, Roberts reasons: “In the same way that judges cannot be the authors of their headnotes and syllabi, legislators cannot be the authors of … their floor statements, committee reports, and proposed bills.”
Dissents from Justice Clarence Thomas (joined by Justice Samuel Alito and in large part by Justice Stephen Breyer) and by Justice Ruth Bader Ginsburg (joined by Breyer) would have permitted Georgia to copyright those materials and retain the exclusive right to authorize their sale and publication.
County of Maui, Hawaii v. Hawaii Wildlife Fund, No. 18-260 [Arg: 11.6.2019 Trans./Aud.; Decided 4.23.2020] (from SCOTUSblog)
Holding: The Clean Water Act, which forbids “any addition” of any pollutant from “any point source” to “navigable waters” without the appropriate Environmental Protection Agency permit, requires a permit when there is a direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge.
Judgment: Vacated and remanded, 6-3, in an opinion by Justice Breyer on April 23, 2020. Justice Kavanaugh filed a concurring opinion. Justice Thomas filed a dissenting opinion, in which Justice Gorsuch joined. Justice Alito filed a dissenting opinion.
This was seen as a big win for environmental advocates, not just for its holding but for how the majority arrived at that holding, and as someone who practiced environmental law for 15 years, I agree. As you can see, even the short description of the holding has three terms in quotes, which means they are defined terms within environmental law, an area of the law that has plenty of them. So let’s try to unpack this decision.
To understand this case, you first need to know the difference between a “point source” of water pollution and a “non-point source”. “Point source” pollution is as simple as it sounds: pollution coming from a single source or confined space. Think of a pipe and a discharge from that pipe. This pollution is easy to see, relatively easy to trace, and it is relatively easy to enforce penalties against the polluter. The United States Environmental Protection Agency (EPA) defines point source pollution as any contaminant that enters the environment from an easily identified and confined place. Examples include smokestacks, discharge pipes, and drainage ditches.
“Non-point source pollution” in just the opposite. It comes from many places, can be of many varieties, and it can be very hard to identify the source or sources and thus can be very hard to address legally. Most nonpoint source pollution occurs as a result of runoff. When rain or melted snow moves over and through the ground, the water absorbs and assimilates any pollutants it comes into contact with, which will eventually find its way to water, either above ground (rivers, lakes, or oceans) or underground (water tables and water supplies). Agriculture is also a large source of non-point source pollution.
Point sources of pollution have to have a permit under the Clean Water Act; non-point sources do not. So what happens in a case like County of Maui. which asked whether the Clean Water Act “requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater.” As SCOTUSblog summarizes the facts of the case:
The case involves pollutant discharges from a wastewater treatment plant in Hawaii. The County of Maui owns and runs a facility that treats sewage from local homes and businesses and daily injects several million gallons of the treated sewage into underground wells designed for this purpose. From the wells, the treated sewage runs into the groundwater under the facility. The wastewater then travels through the groundwater to the Pacific Ocean a half-mile away. In the wells’ decades of operation, the County of Maui has never had a Clean Water Act permit for its discharges, although it has always known that pollutants from its wells reach the ocean….
The parties do not dispute that the treated sewage the county discharges into underground wells is a “pollutant,” the wells are “point sources” and the ocean is a “navigable water.” Further, no one denies that if the county discharged wastewater from a pipe leading directly into the ocean, the discharge would require a permit. The parties’ disagreement centers on the legal relevance of the passage of the wastewater through the groundwater between the county’s wells and the ocean.
The Supreme Court ruled, 6-3, that the Clean Water Act requires a permit when a point source of pollution adds pollutants to navigable waters through groundwater, if this addition of pollutants is “the functional equivalent of a direct discharge” from the source into navigable waters. (Because the U.S. Court of Appeals for the 9th Circuit applied a broader and different legal test in determining that a permit was required for a sewage treatment facility operated by the County of Maui, the Supreme Court vacated the 9th Circuit’s judgment and remanded the case for application of the standard announced in the opinion.)
You can see that this wasn’t a true point source, but the “functional equivalent” of one. It most likely helped the result that there was agreement among the parties that the County of Maui was discharging a pollutant initially from a point source into a navigable water; it just wasn’t direct. Well, what is a “functional equivalent” of a point source? This is where environmental law gets very complex. It is not so much the basic concepts (although the science can be very detailed) as it is the definitions and the application of those definitions. As the SCOTUSblog commentator Lisa Heinzerling explains:
it fell to Breyer to explain just what he meant by “the functional equivalent of a direct discharge” to navigable waters. He candidly acknowledged that his approach “does not, on its own, clearly explain how to deal with middle instances.” He offered a list of “just some of the factors that may prove relevant,” seven in all, including “transit time,” “distance traveled” and other facts about the journey of the pollution from a point source to the navigable waters. “Time and distance,” he emphasized, “will be the most important factors in most cases, but not necessarily every case.” In making these judgments, Breyer emphasized, “[t]he objective … will be to advance, in a manner consistent with the statute’s language, the statutory purposes that Congress sought to achieve.”
So that is the result, which you can see environmental advocates were very happy with. But what they were also happy with was the interpretive method Justice Breyer used to get there, a method that had the complete agreement of Chief Justice Roberts and (with a concurrence that was not relevant to this outcome) Justice Kavanaugh.
In the old days (say when I studied and first started practicing law in the 1980s) the usual way of interpreting a statute focused on the language of the statute, its legislative purpose, and legislative history. Recently, there has been the rise of textualism. “Textualism” is a theory in which the interpretation of the law is primarily based on the ordinary meaning of the legal text, where no consideration is given to non-textual sources, such as the intention of the law when passed, the problem it was intended to remedy, or significant questions regarding the justice or rectitude of the law. (When this Term calms down I promise to write a blog post on schools of interpretation. Suffice it to say that there are entire academic and judicial careers based on arguing for and against textualism and other methodologies).
Breyer though went old school–really old school. As Lisa Heinzerling says, “[t]he opinion reads like something from a long-ago period of statutory interpretation before statutory decisions regularly made the central meaning of complex laws turn on a single word or two and banished legislative purpose to the interpretive fringes.” In rejecting the County of Maui’s and the Solicitor General’s (who sided with the County) arguments, Breyer put legislative purpose front and center in concluding that their interpretations would open a “large and obvious loophole in one of the key regulatory innovations of the Clean Water Act,” and allow “easy evasion of the [relevant] statutory provision’s basic purposes.” Again, Lisa Heinzerling: “Breyer’s invocation of legislative purpose – and even a brief discussion of legislative history! – went unchallenged by the five other justices who embraced his test for determining the reach of the Clean Water Act’s permitting requirement where discharges to groundwater are involved.” Most notably, this included the Chief Justice and Justice Kavanaugh.
So that is County of Maui in a nutshell. I hope it’s clear, but feel free to comment and ask questions.
Next up: all the remaining major cases (10 of them) as they are handed down by the Court. Get ready!