In its first environmental case of the term, the Supreme Court will hear arguments Wednesday in a battle to push EPA to get more specific about the level of pollution a San Francisco wastewater treatment plant — and other facilities like it — can send into the nation’s waters.
The case pits the deep-blue city against the Biden administration and follows a string of recent cases in which the Supreme Court has struck down federal environmental protections and limited the rulemaking power of executive agencies.
“Given that the court has been so hostile towards EPA and environmental regulations generally — and the fact that they granted this case, which no one really expected them to do — I don’t think it portends very well” for the agency, said Robert Percival, director of the environmental law program at the University of Maryland.
At issue is a long-standing dispute over sewage and stormwater pollution that flows into San Francisco Bay when it rains.
Like many cities, San Francisco has a combined sewer system that cannot always handle excess water mixed with sewage during storms. Under both the Biden and Trump administrations, EPA has ordered local officials to reduce those overflows.
“There have been instances of sewage flowing in the streets and entering people’s homes,” Michael Stoker, who led EPA’s West Coast regional office under then-President Donald Trump, wrote to city officials in 2019. “Moreover, the City’s data also show other pollutants of significant concern such as copper, zinc, lead, cyanide and ammonia that can threaten the water quality of the Bay and the ocean.”
But San Francisco argues that it should not be held liable for the quality of “receiving” waters near its treatment plants, only for specific discharges from the plants. A slew of industry trade groups and other cities’ public works departments have lined up in their defense. A lower court ruled against San Francisco, prompting the city’s appeal to the nation’s highest bench.
If San Francisco prevails at the Supreme Court, it could upend a key tool used by EPA to reduce water pollution and make it harder for federal and state regulators to write and enforce permits, legal experts said.
“At a minimum, it’s going to make permitting much more complex and time-consuming,” said Sanjay Narayan, chief appellate counsel at the Sierra Club’s environmental law program.
Here are five things to know about San Francisco’s Clean Water Act fight against EPA:
1. Lots of money is on the line
Even unintentional violations of a National Pollutant Discharge Elimination System permit could leave San Francisco — and other permittees — vulnerable to criminal punishment and civil penalties in the millions, or even billions, of dollars.
Earlier this year, EPA sued San Francisco for its failure to run its combined sewer systems in a manner that prevents untreated sewage from reaching the city’s waters. The city faces civil penalties of more than $66,000 per day for each permit violation.
Then, there is the possibility of additional lawsuits from private parties.
The potential penalties are not in keeping with Congress’ intent in designing the NPDES program under Section 402 of the Clean Water Act, San Francisco wrote in a brief to the Supreme Court. Compliance with an NPDES permit, the city said, should protect the permit holder from liability under the law.
“The Act’s severe penalties are warranted only alongside ‘some measure of predictability,’ which is why ‘Congress intended to establish clear and identifiable discharge standards’ in permits that ‘provide manageable and precise benchmarks for performance,’” the city wrote in its brief.
But some observers say that EPA has good reason to include what the city describes as nonspecific requirements in wastewater permits.
Stormwater pollution is notorious for containing a variety of substances that can dirty local waterways — including bacteria, “forever chemicals,” fertilizers and pesticides, said Betsy Southerland, a retired EPA official who led science policy in the agency’s Office of Water. In San Francisco’s case, the city’s sewage pollution problems have also been well-documented, Southerland said.
“The city should not have waited until EPA ordered them to fix a pollution problem which was so massive and so visible,” she said in an email.
2. The ruling will likely ripple through U.S. cities
San Francisco isn’t the only city at risk of big Clean Water Act penalties.
In one friend of the court brief, municipal water utilities in places like Washington and New York City said EPA’s approach is undermining the billions of dollars that public utilities invest to ensure they are complying with the law.
“The permit terms at issue here are no outliers,” the cities wrote of San Francisco’s case. They added: “Simply stated, when public investments are inefficient because regulatory requirements change midstream, rates charged to the public increase.”
Even so, EPA’s efforts to get cities to reduce sewage pollution have yielded some success stories, said Patrick Parenteau, emeritus professor at Vermont Law School. One example is Portland, Oregon, which was ordered to fix its sewage and stormwater system to reduce pollution in the Columbia Slough, Parenteau said.
“It took a while, it took a lot of money and it disrupted a lot of things, but they got it done,” he said, “and now the water is safe enough for the kids to swim in.”
Kevin Minoli, a partner at the law firm Alston & Bird and former EPA general counsel, said it’s unlikely that the Supreme Court took up the case with the intention of issuing a ruling that applies only to San Francisco.
“Instead,” he said, “the Supreme Court could issue a decision that impacts nearly all of the more than 300,000 entities that rely on Clean Water Act Section 402 permits.”
3. Fossil fuel groups are siding with San Francisco. California isn’t.
San Francisco — one of the nation’s most liberal cities — is garnering support and opposition in unexpected places.
Trade groups like the National Mining Association, American Farm Bureau Federation and American Fuel & Petrochemical Manufacturers penned an amicus brief in support of the city saying that if EPA prevails, their members are likely to be on the hook for alleged violations of Clean Water Act permits — with no way to ensure that they are complying with the law.
They wrote that holding permittees responsible for the quality of receiving waters, rather than their own discharges, violates the purpose of the NPDES program and leaves their members “exposed to potentially devastating liability.”
California rebutted those claims in its own amicus brief in support of the agency. The state made the case that EPA’s approach is consistent with Congress’ intent that the NPDES program protect the quality of the nation’s waters while placing the onus on parties that wish to discharge pollutants to determine the best way to do so.
“In some circumstances,” the state wrote, “the best — or only — way to satisfy that requirement is a general narrative prohibition.”
If San Francisco wins, said Brian Bell, a partner at the law firm Dorsey & Whitney, “it will likely be in large part due to the support of the court’s conservative majority.”
4. San Francisco tried to kill the case
The lawsuit has sparked infighting among local officials in San Francisco, with members of the city’s Board of Supervisors having sought to end the dispute with EPA.
Last week, the board passed a resolution urging the city and the San Francisco Public Utilities Commission “to immediately resolve” the issues under litigation. Supported by eight of the 11 board members, the resolution says that the outcome of the case could significantly harm water quality “at a time when environmental protections are already under serious threat.”
But the last-ditch effort by the board, which is independent from the mayor’s office and utilities commission, does not appear to have persuaded officials arguing the case.
In a statement to POLITICO’s E&E News last month, City Attorney David Chiu said the city must protect consumers from paying billions of dollars for “negligible” improvements to its wastewater system and ensure that water permitting standards are clear and fair.
“It’s unfortunate that the public has been misled about this lawsuit,” Chiu said.
5. The case could test the impact of Chevron’s demise
The Supreme Court’s recent rulings have many legal experts convinced that EPA is unlikely to come out on top in the case.
In particular, they point to the justices’ June decision in Loper Bright v. Raimondo overturning the Chevron doctrine, which for 40 years had instructed judges to defer to agencies’ reasonable interpretations of ambiguous federal laws.
While EPA has not asked for Chevron deference in the case, the conservative-dominated court is expected to take a skeptical view of the agency’s position that the text of the Clean Water Act clearly allows the narrative permit requirements that San Francisco opposes.
“I would imagine — especially since Loper Bright — that San Francisco will win this one,” said Erin Hawley, senior counsel at the Alliance Defending Freedom.
Arguments in the case, San Francisco v. EPA, will take place Wednesday morning at the Supreme Court.
