When San Francisco officials have defended their lawsuit against the EPA, one joined by some of the nation’s biggest polluters, they have argued that the Supreme Court could decide the case on very narrow grounds and not threaten the entire Clean Water Act.
But I listened to the oral arguments at the high court yesterday, and it’s clear that some of the conservative justices are, indeed, looking for a broad interpretation that could undermine the ability of the Environmental Protection Agency to regulate toxic discharges into federal waterways.
In other words: As environmental groups and some of the supes feared, taking this case to the Supreme Court was a massive risk to decades of environmental law.
The case involves the city’s westside sewage discharge station, which has a pipe that normally sends treated wastewater three miles out into the Pacific Ocean—which makes it federal territory. (Other pipes from SF and other jurisdictions that discharge closer to shore are under state regulation.)
When the city’s facing heavy rain, the water in the combined storm and sewage system overwhelms the treatment facility and raw sewage goes directly into the Ocean. Data shows that high bacterial levels are present along Ocean Beach, in areas where people visit and surf and catch fish, which can also be contaminated by heavy metals in the sewage.
The EPA has informed San Francisco that it has to lower its level of discharges to the point that they don’t seriously impact the water quality in the area.
The city argues that the order is too vague, because it doesn’t specify how much of what contaminants can be sent out to sea.
Frederick Liu, an attorney in the US Solicitor General’s Office, representing the EPA, said that these types of “generic” orders are pretty common, since a lot of industries want the chance to figure out on their own how best to meet water-quality standards. He said that, for example, construction companies would have to wait as long as a year for site-specific permits, but a generic permits that outlines the limitations on how much they can pollute—but doesn’t tell them how to get there—can be approved in 14 days.
The ability to set levels for water quality, and then direct potential polluters to meet those levels, is a key regulatory function of the EPA, Liu said. In the case of San Francisco, the agency is telling the city to meet certain water-quality standards at the outflow of its discharge pipe instead of saying that it can release specific amounts of certain toxins.
Eliminating that authority would make it impossible to enforce standards under the Clean Water Act, Liu said.
Liu also said that the agency couldn’t set more specific standards because San Francisco has failed to provide the data the EPA needed to establish clear rules.
At one point, Justice Neal Gorsuch suggested that the court could just rule that the EPA can issue general guidelines when a polluter fails to provide adequate data. That would be a narrow ruling. But then he said that if all the court was going to offer was a narrow ruling, the justices should never have taken the case. Which suggests that isn’t going to happen.
Justice Clarence Thomas went a lot further. He asked Deputy City Attorney Tara Steeley, representing the city:
Well, let me ask it differently. Can EPA impose generic limitations on anyone?
MS. STEELEY: No.
JUSTICE THOMAS: Why? MS. STEELEY: Because they point to Section 301(b)(1)(C) as their only source of authority to impose Generic Prohibitions.
JUSTICE THOMAS: Yeah.
(If you want to read the entire transcript, it’s here.)
As Liu noted:
Rather than pursue an individualized challenge to the limitations in this case, San Francisco has put before this Court only a facial challenge: That all limitations that prohibit discharges based on their effects on water quality are invalid on their face because they don’t fit the statutory definition of effluent limitation.
Justice Brett Kavanaugh:
Just to pick up on Justice Thomas’s question when he asked if anything prohibits, your response, and I just want to make sure I have this clear, was nothing in the statute authorizes something like the generic limitations, correct?
MS. STEELEY: That’s correct.
JUSTICE KAVANAUGH: And that — and your point about water quality standards, I want to make sure, I think with Justice Gorsuch, the water quality standards are the goal or the end, that the statutory means to that end that are authorized by the statute are the effluent limitations?
Justice Elena Kagan tried to bring things back to reality:
JUSTICE KAGAN: I see. And if — this issue of, like, we don’t know what we’re supposed to do, it’s horribly unfair, and — and you think, well, they’ve really not come up with any particular way in which that’s true, I mean, I thought that most of these were something like this: There’s a California water quality standard that says waters shall not contain floating material in concentrations that adversely affect fishing and swimming. And it turns out EPA says that, notwithstanding that standard, San Francisco has left lots of toilet paper floating in Mission Creek. I mean, that’s not a “we don’t know what to do” issue. Like, we know you’re not supposed to leave toilet paper floating in Mission Creek, don’t we?
MR. LIU: It would be strange if concerns that are individualized to other types of limitations that may or may not be vague cause the court to throw out the whole set of these types of limitations … We would certainly appreciate a decision from this Court that was tailored to the particular concerns that may be motivating Petitioner’s position. But to be clear, we understand Petitioner’s legal argument in this Court, the textual hook on which they’ve hung their entire presentation, to be a facial challenge to these limitations.
That’s how the court could see this: As a direct challenge to the authority of the EPA to limit the amount of toilet paper in Mission Creek—and on a larger level, to set generic limitations on water pollution and demand that polluters use their own tools, money, and technology to reach those limits.
That’s a scary thought with this court.
