ChesterNewMatter4thQtr2021 - 16

Save Our Environment
GREY WATER, THE AMISH, THE POLICE POWER
AND THE FREE EXERCISE CLAUSE
By John R. Embick, Esquire
John R. Embrick PLLC
Chair of the CCBA
Environmental Law Section
The First Amendment to the U.S. Constitution
provides as follows:
Congress shall make no law respecting an
establishment of religion or prohibiting the free
exercise thereof; or abridging the freedom of speech,
or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress
of grievances.
The provisions in the U.S. Constitution which address
religious freedom have been referred to as the " Free
Exercise Clause. " The scope of the " Free Exercise Clause "
is complicated because religious practices usually involve
both belief and conduct. Government regulation of
religious beliefs is clearly out of bounds. Regulation of
religious-based conduct, however, is cloudy. A common
rule of thumb is that the Free Exercise Clause does not
necessarily prevent the government from requiring
certain conduct, or forbidding certain conduct, merely
because religious beliefs inform the conduct in question.
This question arose again in the October 2020-2021
Term of the U.S. Supreme Court in Mast, et al. v. Fillmore
County, Minnesota, et al., No. 20-7028, 593 U.S. ___ (July
2, 2021). This case was decided not long after Fulton v.
Philadelphia, 593. U.S. ___ (2021) (City of Philadelphia
could not exclude a Catholic organization from
participating in the city-run foster care program because
the organization refused, based on religious principles,
to certify same-sex couples as eligible to participate). In
Mast, the High Court was called to evaluate Fillmore
County's attempt to require a Swartzentruber Amish
community to install modern, conventional on-lot septic
treatment and disposal systems on their residential
properties (Swartzentruber Amish purportedly are
among the most conservative of Amish sects).
A modern, conventional on-lot septic system has
16 | New Matter
a septic tank (for containing and settling solids) and
a distribution field (which allows effluent from the
septic tank to percolate into the soil), and associated
piping, valves, and access ports. While the technology
is simple, a new septic system can cost up to $40,000.00
to install, and must be regularly maintained (inspection
and pumping). Many Amish communities neither have
running water in their homes, nor indoor toilet facilities.
Accordingly, much of the domestic wastewater produced
by Amish homes is " grey water. " Grey water is generally
defined as domestic wastewater not contaminated
by fecal matter ( " black water " is generally defined as
domestic wastewater which has been contaminated
by fecal matter). The Pa Clean Streams Law defines
" sewage " as follows: " Sewage " shall be construed to
include any substance that contains any of the waste
products or excrementitious or other discharge from the
bodies of human beings or animals. 35 P.S. §691.1.
The Amish asked for an exemption from the septic
system requirements based on their religious belief that
the use of modern, conventional septic system disposal
technology is forbidden. Fillmore County responded by
threatening criminal penalties and civil fines. The Amish
then filed a declaratory judgment action alleging that the
septic system requirements violated the federal Religious
Land Use and Institutionalized Persons Act ( " RLUIPA " ),
42 U.S.C. §§ 2000cc, et seq. The Amish also proposed a
grey water disposal system that they felt could be used
as an alternative, and which was consistent with their
religious beliefs. This latter system uses large basins
filled with wood chips to filter grey water for reuse, and
such grey water systems apparently are approved for
use in some jurisdictions. It is difficult for outsiders to
see why mulch pit filtration and percolation of effluent
is radically different that conventional septic system
settling and percolation, but that's religious belief for you
(one question which is not answered in Mast is how a
litigant goes about proving what a sincerely held religious
belief actually is, and upon whom the burden falls to
establish it).
The Minnesota state courts denied the exemption,
and the Mast case went to the U.S. Supreme Court on a
petition for writ of certiorari, which was accepted. The
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