Democratic-appointed Supreme Court justices on Wednesday strongly criticized San Francisco 's challenge to the Environmental Protection Agency 's authority to set generic limitations for wastewater discharges under the Clean Water Act .
The high court heard oral arguments on Wednesday for the City and County of San Francisco v. EPA, a case in which the city alleges the agency exceeded its statutory authority under the Clean Water Act by declining to issue specific restrictions on wastewater pollution in a permit. The city maintains that the lack of clear, specific limits leaves it vulnerable to penalties.
The Clean Water Act requires the agency to issue National Pollutant Discharge Elimination System permits to ensure water quality standards and control pollution. But Tara Steeley, deputy city attorney for San Francisco, argued that the agency’s permit requirements “doesn't tell permit holders in advance what we must do to control our discharges.”
Yet Justice Sonia Sotomayor, who was nominated by former President Barack Obama, said, “I see in the water standards that they are very detailed on any number of discharges. You can only have X amount of species in the water, or Y amount of bacteria, pages and pages of measurements.”
"I do accept that there are some provisions of the water standards that are charitably a little amorphous," Sotomayor said, offering examples of pollution standards such as gauging the "color of the water."
In 2019, the EPA approved San Francisco’s NPDES permit for the city’s sewer system and wastewater treatment facility, but the city argued that the permit’s limits on wastewater discharge were too broad. The city challenged the EPA’s permit in the 9th U.S. Circuit Court of Appeals, but the court upheld the agency’s authority under the Communications Workers of America to issue “general narrative prohibitions,” or broad limits on wastewater discharge.
San Francisco appealed the decision in February, asking the high court to overturn the 9th Circuit’s ruling. The city, industry, and water groups said the permits must provide specific “numeric discharge limits” to ensure compliance with water quality standards.
Justice Elena Kagan, also an Obama appointee, criticized San Francisco’s counsel for not making an argument that the statute prevents the EPA from setting these limitations.
“Some people like these kinds of standards,” Kagan said. “If the EPA couldn't do these standards, presumably they would do something else which might be more prescriptive, which some parties might really hate.”
Despite reaching the Supreme Court, San Francisco is experiencing some tension at home, with the city’s board of supervisors voting in favor of asking city officials to resolve the case quickly. They warned that a Supreme Court ruling could harm water quality nationwide.
Meanwhile, Chief Justice John Roberts, who was nominated by former President George W. Bush, wondered whether the EPA is attempting to enforce a more antiquated system "because it … gives more power" to the agency.
"You can sit back, and also, you don't even have to allocate among many different polluters who's responsible for what," Roberts suggested.
Frederick Liu, assistant solicitor general for the Justice Department, pushed back on Roberts's comment, saying, "It's not easier for us," and that ideally, the EPA would rather have more accurate information about how San Francisco's system works so it could tell city officials about rerouting flows, upgrades needed for pump stations, or needs for increased storage capacity.
While there was no direct indication of how the justices would decide the case, several of the Republican-appointed justices noted that the concerns raised by San Francisco could leave the EPA "vulnerable" to a holding that the agency's actions were unreasonable.
"And you agree that all of [San Francisco's] concerns would make you vulnerable to an arbitrary and capricious challenge?" Justice Amy Coney Barrett asked an attorney for the agency.
"Yes, I mean, in this very case, San Francisco brought three variations of that type of challenge," Liu added.
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In recent years, the Supreme Court has not ruled in favor of the EPA in high-profile cases and has been critical of the administrative state. Last term, the high court overruled the decade-old Chevron doctrine, which required courts to defer to agencies for interpretation of a law or regulation.
A decision is expected before the end of June.
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