Justices Appear Open to Limit Vague Water Pollution Permits (1)

The US Supreme Court seemed poised in oral arguments Wednesday to allow the EPA to impose generic effluent limitations on cities only if the agency has exhausted all other efforts to get information it needs.

The central question in City and County of San Francisco v. EPA is whether the Environmental Protection Agency can require wastewater systems to comply with nonspecific, or generic effluent limitations, set in National Pollutant Discharge Elimination System (NPDES) permits governing pollution from sewer overflows during storms.

The US Court of Appeals for the Ninth Circuit in July 2023 upheld EPA’s authority to issue generic limits on discharges under the Clean Water Act.

The ideological divide among the justices was evident during the oral arguments, with the three liberal justices focusing their questioning on the letter of the law, and conservative justices focusing largely on the impact generic permits have on cities subject to federal Clean Water Act regulations.

Justice Brett Kavanaugh said the overarching problem the city faces is that it doesn’t know what its obligations are under its vague permit, and the city is on the hook for millions of dollars in fines and potential criminal penalties.

About $10 billion in “crushing” EPA penalties against San Francisco are at stake for NPDES permit violations related to the city’s combined sewage overflow system that discharges into the Pacific Ocean, Tara Steeley, deputy city attorney for San Francisco, told the justices.

The generic prohibitions prevent the city from knowing exactly what it needs to do to prevent pollution, and EPA can’t legally expose permit holders to conditions they can’t control, Steeley argued.

“Permit holders don’t know what they need to do to comply,” Steeley said, adding that the city can only control its own discharges, not the quality of the ocean water the city’s polluting.

The city claims that if the Supreme Court doesn’t require the EPA to set specific pollution limits, the agency can enforce NPDES permits without defining what constitutes too much pollution.

Frederick Liu, assistant solicitor general for the Justice Department, said during oral arguments that the generic permits are necessary because EPA had made repeated attempts to get San Francisco to provide it with information about the technological upgrades it needed to implement to control its pollution.

The city didn’t provide information about how water flows through its wastewater system, the condition of its pipes, and other crucial technical information that would help EPA determine what the city needed to do to prevent its effluent from polluting nearby ocean waters and it failed to update its long-term plan for water quality control, Liu said.

After it was unable to obtain that information, the EPA included generic prohibitions on water quality impacts in the city’s NPDES permit, he said.

“Without that information, we’re basically flying blind with regards to what San Francisco should do to protect water quality,” Liu said.

Justice Samuel Alito asked Liu if the EPA would be satisfied if the court ruled that generic permits are permissible only when additional technological information needed for greater specificity isn’t available after exhaustive attempts. Liu agreed.

Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson focused on whether generic permits are permissible under the specific wording of the statute and questioned Steeley intensely on what it is about the permits that violates the Clean Water Act.

“You’re not telling me: What in the statute prevents the EPA from doing this?” Kagan said to Steeley, adding that the city is making a policy argument against generic permits best aimed at Congress to fix.

The case is the first to grapple with Clean Water Act regulations since the justices struck down Chevron deference in Loper Bright Enterprises v. Raimondo earlier this year, but that issue was barely mentioned during oral arguments.

Brian Bell, a partner at Dorsey & Whitney LLP, said after the arguments that it’s striking Loper Bright wasn’t raised in any significant way because the case would have been ideal for applying Chevron deference. Instead, the justices focused mainly on policy issues, he said.

“The justices’ focus on policy at oral argument may preview that, from now on, if a statute is ambiguous, courts will not hesitate to make these policy judgments, many of which involve highly technical issues,” Bell said.

The case is City and County of San Francisco v. EPA, U.S., No. 23-753, 10/16/24.