The high court took up San Francisco’s bid to challenge how the government regulates water pollution.
By Kelsey Reichmann, Courthouse News Service
The Supreme Court agreed on Tuesday to review water pollution regulations in San Francisco, taking on another challenge to the Environmental Protection Agency’s authority to regulate pollutants.
San Francisco objects to a permitting requirement for sewer water overflows that the city claims is generic and opens it up to fines and litigation.
“Rather than tell San Francisco how much it needs to control its discharges to comply with the [Clean Water] Act, the generic prohibitions leave the city vulnerable to enforcement based on whether the Pacific Ocean meets state-adopted water quality standards,” Andrew Silton, an attorney with Beveridge & Diamond representing San Francisco, wrote in the city’s petition.
The city said the EPA’s generic standards move the goalposts after it spent billions of dollars on water infrastructure upgrades. A media representative from San Francisco’s attorney’s office said the court’s review was needed to bring clarity and stability to this area of the law.
“We simply want to know in advance what requirements apply to us, and we want the EPA to fulfill its duty under the Clean Water Act to determine those requirements,” Jen Kwart, director of communications and media relations, wrote in a statement. “That is fair.”
Pollution emissions are broadly prohibited under the Clean Water Act with some exceptions. One of these exceptions is found in the National Pollutant Discharge Elimination System program, where the EPA issues permits to release pollutants.
In 2019, the EPA and California published permitting requirements for the Oceanside water system, which collects wastewater from 250,000 residents in western San Francisco. Water from this system flows directly into the Pacific Ocean at several junctions, including near the shore and public beaches.
The proposed requirements set discharge prohibitions and levels of pollution control known as effluent limitations. San Francisco objected to several provisions that blocked the city from releasing any materials into the ocean that would violate water quality standards or create pollution.
San Francisco claimed the EPA errored by failing to quantify what pollutants the city would need to control. The city said the “narrative” limitations violated the Clean Water Act by failing to define the permit’s restrictions.
The Environmental Appeals Board rejected the city’s complaint, finding that the EPA’s standards were not unclear. The Ninth Circuit refused to review the decision on appeal.
“Without guidance from this court, EPA and states will continue to issue NPDES permits that make it virtually impossible for permittees to determine whether they need to implement additional pollution controls to comply with the Act,” Silton wrote.
The EPA urged the court to decline San Francisco’s petition, arguing that it was well within its authority to issue narrative limitations. While the permit did not include numerical pollution limits, the EPA said it still makes clear which standards to follow.
“The permit itself makes clear what those applicable water quality standards are,” U.S. Solicitor General Elizabeth Prelogar wrote in the government’s brief. “Attachment F to the permit — which sets forth the ‘legal’ basis for the permit’s ‘requirements’ specifically identifies the Basin Plan, the Ocean Plan, and State Water Board Order No. 79-16 as the ‘applicable’ state water quality standards.”
The EPA has faced increased scrutiny from the Supreme Court over the last few terms. In the last two terms, the justices issued a major ruling striking down emissions regulations for coal plants and voted to limit the EPA’s authority to regulate wetlands. The court is still considering another case that could limit government regulations on cross-state air pollution.
The Supreme Court did not explain its decision to take up the petition and there were no noted dissents. The justices will hear the case next term.
