High Court to Weigh Whether EPA Must Define ‘Too Much’ Pollution

The US Supreme Court will consider San Francisco’s challenge to the Environmental Protection Agency’s authority to tell cities not to pollute water bodies “too much” without setting a specific limitation.

San Francisco says its National Pollution Discharge Elimination System permits for discharges into the Pacific Ocean don’t tell the city what it needs to do to control pollution from sewage overflows. The US Court of Appeals for the Ninth Circuit last July upheld EPA’s authority to issue generic limits, or “general narrative prohibitions,” on discharges under the Clean Water Act.

The city said that if the Supreme Court doesn’t require the EPA to set specific pollution limits, the EPA can enforce NPDES permits without defining what constitutes too much pollution. The high court granted certiorari Tuesday.

The federal government began an enforcement proceeding against San Francisco on May 1 when it sued the city for “repeated and widespread failures” to operate its stormwater system and sewage treatment plants in compliance with the Clean Water Act, leaving the public vulnerable to untreated human waste and sewage exposure on the beach.

Between October 2022 and March 2023, the city released 4 billion gallons of sewage, some of it untreated, into the Pacific due to sewer system overflows caused in part by improper maintenance, according to the lawsuit.

The case, US v. City and County of San Francisco, in US District Court for the Northern District of California, is asking the court to order the city to halt its sewage overflows; comply with its NPDES permits; and pay a variety of civil penalties, including fines of up to $37,500 per day for violations between 2009 and 2015 and up to $66,712 per day for each violation thereafter.

The city says it’s committed to complying with the Clean Water Act and has spent billions of dollars on pollution control infrastructure.

“We simply want to know the requirements that apply to us, and we want EPA to follow the rules that it set up to determine those requirements,” said Jen Kwart, spokeswoman for the San Francisco Office of the City Attorney.

“The EPA is trying to tell permit holders they can’t cause ‘too much’ pollution, but it isn’t telling us what ‘too much’ is,” Kwart said. “We’re asking for clear requirements to protect water quality so we can follow them.”

Water systems nationwide want specific effluent discharge requirements so they won’t be punished for complying with vague terms of a permit that can be interpreted differently depending on the reader, the National Association of Clean Water Agencies, or NACWA, said in an amicus brief.

The brief was cosigned by attorneys for the City of New York, the Boston Water and Sewer Commission, and the cities of Sunnyvale and Mountain View, Calif.

NACWA said that Congress designed the NPDES program to require permit writers to use water quality standards as the basis for determining specific enforceable effluent limits.

“The Ninth Circuit’s decision allows permit writers to treat the water quality standards themselves as independently enforceable ‘limitations’ without clarifying what is actually expected of an individual discharger to comply,” NACWA said in the brief. “This interpretation ignores the statute’s clear distinction between effluent limitations and water quality standards, as well as the CWA’s overall design and history.”

The case is City and County of San Francisco v. EPA, U.S., No. 23-753, Certiorari Granted 5/28/24.