The Maui County Council on Tuesday failed to muster enough votes to challenge Mayor Michael Victorino’s decision to argue the county’s high-profile wastewater treatment case before the U.S. Supreme Court.

The county has been fighting the wastewater case since 2012. That’s when four community groups, including Hawaii Wildlife Fund, filed a complaint in federal District Court alleging the Lahaina sewage treatment plant was violating the Clean Water Act for injecting millions of gallons of treated wastewater into the ground.

Studies from at least a couple of federal agencies have shown that the treated wastewater travels in the groundwater and winds up in the ocean where it harms coral reefs near Kahekili Beach Park.

Victorino wants the Supreme Court to rule that Maui can continue to use the injection well system until the county can find a feasible method to replace it. He says he wants to avoid potential dire consequences in the form of huge costs from lawsuits and onerous regulatory mandates.

The case is being watched all across the country and has been touted as a national test case that will decide whether the federal Clean Water Act requires a permit when pollutants originate from a point source but end up in navigable waters via a nonpoint source such as groundwater.

After losing in court twice, the county appealed to the Supreme Court. But with new members on the Council, a 5-4 majority in September agreed to settle the case with the community groups and not take it to the Supreme Court. The settlement, among other things, calls for the county to fund at least $2.5 million in West Maui projects to divert treated sewage from the injection wells and to pay a $100,000 penalty to the federal government.

On Tuesday the Council failed to get the six votes (two-thirds) needed to hire a special counsel to file a lawsuit to force Victorino to settle the wastewater case.

However, a separate lawsuit has been filed aiming to accomplish what the Council majority couldn’t: stop the appeal from going forward.

State Rep. Angus McKelvey, the Maui Tomorrow Foundation and a trio of West Maui residents filed the suit Monday in Maui Circuit Court, asking a judge to settle a question that Council Chairwoman Kelly King has described as a charter crisis.

“The mayor’s view is that he has the power to ignore even a unanimous Council decision to settle a lawsuit,” said Anthony Ranken, the Wailuku attorney who represents the plaintiffs in the new suit. “But the Maui County Code is clear that while the mayor can make recommendations to the County Council, the authority to adopt a settlement rests exclusively with the County Council.”

In a news release, Albert Perez, head of the environmental group Maui Tomorrow, said the decision to move forward with the appeal could result in continued contamination of Maui’s ocean environment.

“(It) would set a terrible precedent, much to the delight of polluters across the United States,” Perez said.

The county’s Corporation Counsel issued an opinion saying both the Council and the mayor need to sign off on dropping the injection well lawsuit.

Contacted after the meeting, King said she agrees with Ranken that the County Code gives the Council authority in such cases.

“We need a judge to decide,” she said.

The case is scheduled to be heard at the Supreme Court on Nov. 6.

Meanwhile, Victorino, who has been taking heat from environmentalists over his stance in the injection well case, announced Tuesday that Maui County would file suit against fossil fuel companies for the “mounting impacts” of climate change, including the growing number of brush fires afflicting the county and the rising sea levels threatening coastal infrastructure.

The mayor said he would ask the Council to authorize the hiring of attorneys with special expertise in this area of law.

“With the Council’s support, we will fight back by going to court to hold these companies accountable for the ongoing harm caused by their products and the costs being handed over to taxpayers,” Victorino said in a news release.

As for the suit against the mayor, Ranken said he expects it to be heard in Maui Circuit Court in mid-December. That means oral arguments will be heard by the high court next week as scheduled — unless the court decides on its own to postpone the case.

That’s what King said she’s hoping for, as the court meets Friday to finalize its upcoming calendar. The justices are fully aware of the Maui stalemate, she said, and it is her understanding they could decide to delay the hearing.

Amicus parties have joined in from coast to coast, generally with blue states, conservation organizations and liberal-leaning groups lining up behind the Maui community groups and the Trump administration, government, industry and and red states backing Maui County.