One of the nation’s most liberal cities is enmeshed in a new Supreme Court battle against the Biden administration’s top environmental watchdog — with the backing of fossil fuel trade groups.
In the Supreme Court petition San Francisco v. EPA, which the justices granted Tuesday, the California city contends that federal water regulators failed to get specific enough in setting limits on how much pollution local wastewater treatment and collection facilities can send into the Pacific Ocean.
EPA’s National Pollutant Discharge Elimination System (NPDES) requirements leave permit holders unable to comply with federal standards, lawyers for San Francisco wrote in their request for help from the Supreme Court.
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“San Francisco has invested billions of dollars in infrastructure to meet the [Clean Water] Act’s requirements and stands ready to invest further to reduce pollution if the Act so requires,” they wrote in their petition. “Generic water quality prohibitions, however, neither set limits on the quantities of pollutants that San Francisco may discharge nor prescribe management practices that the City must implement.”
EPA’s requirements leave San Francisco vulnerable to the “crushing consequences” of Clean Water Act enforcement, the attorneys wrote, citing the Supreme Court’s ruling last year in Sackett v. EPA, which removed protections for the majority of the nation’s wetlands.
Attorneys for San Francisco are joined in the case by a team of lawyers from Beveridge & Diamond, including John Cruden, who led the Justice Department’s environment division during the Obama administration.
Other parties had joined San Francisco’s call for the Supreme Court — which hears only a small fraction of the cases that comes its way — to take up the water permitting fight.
In one “friends of the court” brief, trade groups like the National Mining Association, American Farm Bureau Federation, and American Fuel and Petrochemical Manufacturers said EPA’s approach would lead to “drastically increased liability” for their members.
Their brief includes a footnote that calls back to the court’s decision in Sackett: “The imposition of criminal penalties for violations of generic prohibitions ‘gives rise to serious vagueness concerns.'”
At issue is whether EPA and California included unclear or vague pollution limits in a 2019 permit for one of San Francisco’s wastewater treatment plants. EPA has accused San Francisco of discharging massive quantities of sewage during wet weather events into the San Francisco Bay and its tributaries, in violation of the Clean Water Act. The agency also maintains that the requirements for the city are clear.
In a responding brief filed last month, the Justice Department wrote that the permit makes clear that San Francisco cannot discharge pollutants at levels that result in water quality violations. For example, water pollution cannot cause the pH of the surrounding water to change beyond a certain level, and “floating particulates” and grease must not be visible, the department wrote in defending EPA.
“Indeed, petitioner has ‘not identified’ any ‘language in any particular water quality standard’ that petitioner believes to be ‘vague or insufficiently clear,’” attorneys for DOJ wrote in their response.
EPA has long relied on a “catch-all” approach to water quality requirements for sewer overflow systems, said Betsy Southerland, a former EPA official in the Office of Water. That’s because those systems tend to include a mixture of sewage, stormwater and other pollutants that are difficult to predict, she said.
In that sense, the lawsuit has the potential to make it much harder for regulators to require cities like San Francisco to upgrade their sewer systems, Southerland said.
“It would take years of intensive monitoring of many overflow events at each location to identify the frequently occurring pollutants in these overflow events,” she said in an email.
But Jen Kwart, a spokesperson for San Francisco City Attorney David Chiu, said EPA is imposing “unspecified, unknown and unknowable requirements.”
“The issue here is whether San Francisco and other permit holders across the nation can be found in violation of generic prohibitions against impacting water quality that don’t identify any specific requirements that we’re supposed to follow,” Kwart said in a statement. “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.”
EPA spokesperson Remmington Belford said the agency had “no further information” or comment because of the pending nature of the litigation.
The city’s legal saga
San Francisco’s Supreme Court plea stems from its loss before a lower bench.
Last year, two Democratic-appointed judges of the 9th U.S. Circuit Court of Appeals ruled that EPA has the power to require San Francisco to update its long-term plan for controlling pollution from combined sewer overflows — and that that requirement was not dependent on a determination that the city fell short of water quality standards.
One Trump-appointed judge dissented from his 9th Circuit colleagues, finding that “narrative” — rather than numerical — pollution limits are inconsistent with the intent of the Clean Water Act.
San Francisco argued in its petition to the justices that the 9th Circuit decision conflicts with prior rulings from the Supreme Court and the 2nd U.S. Circuit Court of Appeals in New York that say EPA must develop specific limits for NPDES permit holders to meet water quality standards.
In its earlier filing asking the justices not to take San Francisco’s case, EPA pushed back against the assertion that there is disagreement between the courts on this issue.
The 2nd Circuit case that San Francisco cited concerned a general NPDES permit for an entire group of vessels to control discharges of ballast water from ships, wrote Solicitor General Elizabeth Prelogar. Environmental groups had sued over the permit, arguing that it was not specific enough to ensure compliance.
In San Francisco’s case, Prelogar said, the city sought to protect its own interests. She said the city’s argument is undermined by the fact that NPDES permits for combined sewer systems have for a long time incorporated requirements similar to the limits in this case.
The case comes as EPA and the San Francisco Bay Regional Water Quality Control Board are also suing the city for allegedly violating the Clean Water Act over decades.
In a separate lawsuit this month, the agencies accused the the city of discharging sewage into streets and parks in the Bay region, failing to properly maintain its treatment systems and not providing adequate notice to the public about sewage discharges. Those discharges, which are in violation of the city’s permits, are a major threat to public health, EPA and the state, the agencies said.
“San Francisco’s aging wastewater system has exposed the public to risks for too long,” Alexis Strauss, chair of the San Francisco Bay Regional Water Quality Control Board, said in a statement regarding the lawsuit against the city. “This is the time to commit to an outcome which reduces sewage overflows and builds upgraded wastewater infrastructure.”
The Supreme Court is expected to hear San Francisco v. EPA next term.
