Lawmakers in San Francisco are launching a last-ditch effort to kill the city’s lawsuit challenging federal water pollution requirements, weeks before Supreme Court oral arguments are set to begin.
The city has accused EPA of including unreasonably vague requirements in a wastewater permit for one of its sewage treatment plants. The language in the permit is designed to protect water quality and is widely used in permits for municipalities nationwide. San Francisco says it’s virtually impossible to follow.
But on Tuesday, San Francisco Supervisor Myrna Melgar introduced a resolution urging the city attorney’s office to drop the case.
Melgar is one of 11 members of the Board of Supervisors, which is independent from the mayor and city attorney. In an interview Wednesday, she said she is concerned about the Supreme Court weakening the Clean Water Act, especially considering that the court did so in another case last year, Sackett v. EPA.
“Many of us in the legislative body of the city and county of San Francisco don’t agree with this strategy,” Melgar said in an interview. “We think it’s really risky. We had many people come yesterday at a public comment for this item.”
The resolution would not be binding, but Melgar said there is sufficient support on the board — whose members are nonpartisan — to pass it. In addition, she is working on drafting an ordinance calling on the city to drop the case, which would be binding, she said.
While the timing is in flux, Melgar said she’s trying to move quickly given that Supreme Court oral arguments are set for Oct. 16.
“If there’s anything that gets resolved, it has to happen in the next week,” she said.
National interest
Despite the case’s local origins, the outcome could have broad ramifications for wastewater permits and limit EPA’s ability to control the release of sewage and other contaminants, legal experts said.
The city’s fight has also drawn support from business groups, including the National Mining Association, U.S. Chamber of Commerce, National Pork Producers Council and National Association of Home Builders. In addition, several other municipalities are backing the city in its case.
City attorney David Chiu said he has no plans to drop the case and said that the public “has been misled about this lawsuit.”
The permit requirements set by EPA would force the city to spend at least $10 billion on water infrastructure upgrades, producing “negligible” water quality benefits, Chiu said.
“[I] have a duty to protect San Franciscans from utility rates that would drive them into poverty, as well as make sure San Francisco complies with its obligations to protect the environment,” he said in a statement. “[Our] lawsuit is about ensuring the EPA follows the Clean Water Act and gives permitholders clear standards that actually prevent pollution before it happens.”
At issue is the city’s Oceanside wastewater treatment plant, which releases raw sewage and other pollutants into the Pacific Ocean — including near public beaches — during heavy rainstorms. In a pollution control permit for the plant, EPA mandated that the city ensure its pollution discharges do not “contribute to a violation of any applicable water quality standard.”
That language is intended to account for the “cumulative effect” of different pollution sources into a body of water, and it’s especially useful for municipal sewage overflows, said Patrick Parenteau, a professor of law emeritus at Vermont Law and Graduate School.
That’s because it would be extremely difficult for EPA to set more specific pollution control requirements for each pollutant from a sewage treatment plant, he said.
“If you think about combined sewer overflows, which is what this case is about, that’s a soup of pollutants,” Parenteau said. “It’s everything that comes off an urban landscape, parking lots, streets, every impervious surface.”
Still, the city maintains that it’s unreasonable for EPA to require it to comply with water quality requirements that aren’t specific to individual pollutants or the technology used at the plant.
Local environmental groups in San Francisco, meanwhile, voiced concern about the lawsuit at the San Francisco Board of Supervisors meeting Tuesday, said Scott Webb, vice chair of Sierra Club San Francisco Bay Chapter. Those opposing the lawsuit include surfers, swimmers and groups pushing for less pollution in disadvantaged communities, he said.
“This is a very selfish move that will affect the country at large and lays out a big playbook for other municipalities and polluters who want to take a round at the Supreme Court on environmental protections,” Webb said of the city’s lawsuit.
Ian Fein, senior counsel at the Natural Resources Defense Council, said San Francisco’s arguments “don’t account for how water pollution often works in the real world.”
“I find it disappointing that San Francisco, of all places, is asking this Supreme Court to undermine important clean water protections,” Fein said.
If the city were to drop the case, the court might dismiss it as moot, Parenteau said. However, the court could feasibly decide the case anyway if it found that the legal question at hand still needed to be determined, he added.
