The Environmental Protection Agency took on a case of deja vu as the justices returned to familiar contentions over regulatory authority.
By Kelsey Reichmann, Courthouse News Service
A review of federal wastewater regulations unleashed contentious arguments at the Supreme Court Wednesday where the justices quarreled among themselves as much as against the advocates.
For nearly two hours, the justices quibbled over how the Environmental Protection Agency quantified prohibitions on dumping sewer water.
“There’s a California water quality standard that says waters shall not contain floating material, and it turns out EPA says that San Francisco has left lots of toilet paper floating in Mission Creek,” Justice Elena Kagan, a Barack Obama appointee said. “I mean, that’s not a ‘we don’t know what to do’ issue. We know you’re not supposed to leave toilet paper floating in Mission Creek.”
Justice Brett Kavanaugh, a Donald Trump appointee, who appeared skeptical that the agency’s standards were clear, interjected, “That’s one example. There are plenty of others.”
Kagan responded: “There might be examples where they don’t know something, although they haven’t come up with any.”
Kavanaugh and his conservative colleagues lamented the EPA’s qualifications for legally releasing wastewater. The agency controls exceptions to the Clean Water Act’s pollution prohibitions through National Pollutant Discharge Elimination System permits.
The EPA determines a municipality’s dumping limitations based on technology, but the agency can implement additional restrictions to meet water quality standards.
San Francisco’s discharge permit included technical effluent limitations — based on quantities, rates and concentrations of chemical, physical and biological materials in wastewater — and an order prohibiting any discharges that cause or contribute to reductions in receiving water quality.
The city challenged the latter prohibition as not only unfair but also outside of the EPA’s regulatory authority.
“Permitholders don’t know what they need to do to comply,” Tara Steeley, San Francisco’s deputy city attorney, said. “We know how to comply with the 300 pages of our permit, which tells us our discharge limitations that we need to achieve. The problem with the generic prohibitions is that they don’t tell us what in addition that we need to do.”
Kavanaugh championed the city’s concerns, saying the broad and vague standards leave municipalities vulnerable.
“You’re on the hook for millions of dollars and potential prison time even though you didn’t know what your obligations were ahead of time, which strikes at least me as definitely a policy problem but one that’s rooted in the statute,” Kavanaugh said. “You don’t know what your obligations are and you can go to prison.”
Justice Neil Gorsuch, another Trump appointee, described the generic standard of not harming water quality as an order to “go forth and do good.”
Chief Justice John Roberts, a George W. Bush appointee, joined the refrain, stating that Congress enacted the Clean Water Act to create more certainty for pollution discharge standards.
“The bad old days are when we had water quality standards,” Roberts said. “People didn’t know what they were supposed to do, how it was going to be allocated, and I think the danger here is that [the EPA is] going back to the other system.”
The liberal justices’ rejoinder accused San Francisco of trying to avoid regulations.
“You’re making a policy argument to either the agency or to Congress,” Justice Elena Kagan, an Obama appointee, said.
Kagan said she couldn’t find San Francisco’s argument on the question the court agreed to answer: whether the EPA had the authority to use generic prohibitions. While the liberal justices sought to cabin the court’s review to a facial challenge, the conservative justices appeared less concerned about considering whether the EPA’s use of generic prohibitions was unconstitutional as applied.
“The facial challenge thing is a total distraction,” Kavanaugh said.
Justice Sonia Sotomayor, another Obama appointee, said she “was quite surprised” when comparing the question presented and San Francisco’s brief.
“I thought to myself, this is a new theory,” Sotomayor said, later noting, “We’re not a court of first impression.”
Justice Ketanji Brown Jackson, a Joe Biden appointee, questioned San Francisco’s objection to the EPA’s requirements when they matched California’s.
“My big problem is that I’m trying to understand why you find these permit provisions so onerous or problematic when they seem to just incorporate standards that already exist under state law that you would have to follow anyway,” Jackson asked.
Sotomayor noted the EPA’s permit forces San Francisco to comply with the state standards which are not self-executing.
“If the water standards are not self-executing, which you admit, if they’re not in the permit because they haven’t been put into the permit, then what you’re saying is: Well, you can’t do anything immediately, EPA, you have to start a review process that takes months and sometimes years to amend the permit and do something about it,” Sotomayor said.
The EPA said generic limitations are disadvantageous because they are harder to enforce. Frederick Liu, assistant to the solicitor general at the Justice Department, said the agency had to use generic prohibitions because it was missing critical information to develop effluent limitations like where water flows go, the conditions of the pipes and pumping stations and responses to weather events.
“Without that information, we’re basically flying blind as to how we’re going to tell exactly what San Francisco should do to protect water quality,” Liu said.
Trying to suss out the information hole, Justice Samuel Alito, a George W. Bush appointee, asked, “Is there anything that prevented you from obtaining whatever information you thought you needed?”
Liu affirmatively answered, “San Francisco,” leading to laughter throughout the courtroom.
Alito offered the government a sliver of hope at maintaining generic prohibitions, which Liu said were essential for projects like construction requiring quick permitting turnaround.
“Do you want us to hold — and maybe this would be an appropriate disposition of this case — that permit requirements like these are permitted in the specific situation in which EPA or the state has made every reasonable effort to get the necessary information from the regulated party and the regulated party has refused to provide the information?” Alito asked.
Liu said yes, noting that generic prohibitions were necessary if the EPA didn’t have information to develop tailored limitations.
“No one engaged in construction wants to take the six months to a year to apply for an individual permit,” Liu said. “They want to be able to get that authorization quickly and efficiently. But the tradeoff between not having that information about how their individual site operates is that we have to rely on a more general prohibition like this.”