San Francisco Is Handing the Right-Wing Supreme Court a Gift

The Supreme Court agreed on Tuesday to hear a challenge to the Clean Water Act that has brought together two unlikely allies: San Francisco, the West Coast’s famed bastion of progressive liberalism, and the bulk of the American business sector, which typically stands athwart it.

In City of San Francisco v. Environmental Protection Agency, city officials told the justices that the supposedly vague requirements imposed upon San Francisco by an EPA water quality permit went beyond what the law allowed. “These blanket requirements instead subject San Francisco to the ‘crushing consequences’ of the CWA’s enforcement machinery without prior notice of what the Act requires,” the city protested, quoting a recent decision on the CWA’s scope.

National business groups, led by the U.S. Chamber of Commerce, agreed with that assessment. In their own court filings, they said that they “represent nearly every business sector across the U.S. economy and are concerned about the devastating consequences of the Ninth Circuit’s wrongheaded decision, which approves such generic conditions.”

By persuading the justices to take up the case, the city of San Francisco may free itself from potentially onerous water quality regulations. But a victory for the city could also curb the agency’s power to enforce those standards throughout the country, with major implications for everyone else.

Congress passed the Clean Water Act in 1972 to address the urgent problem of water pollution throughout the United States—a crisis that had become urgent by the late 1960s as some of the nation’s major rivers actually caught fire. That law allows the Environmental Protection Agency to regulate any pollutant discharges into the “waters of the United States.”

One of the EPA’s tools under the law is a permit system known as the National Pollutant Discharge Elimination System. The agency uses NPDES permits to regulate certain sources of water pollution and set standards for what can be discharged into the “waters of the United States.” In California and other states, the EPA can issue the permits jointly with state water regulators.

San Francisco, like many other U.S. cities, has a combined sewer system, meaning that it handles both sewage and stormwater through the same pipes. When the amount of stormwater goes beyond what the city’s sewage treatment plants can handle, it overflows into surrounding waters. That overflow can consist of a mixture of stormwater, untreated sewage, and other biological and industrial pollutants.

Treated water in San Francisco is discharged through either the Bayside system, which flows into the San Francisco Bay, or the Oceanside system, which flows into the Pacific Ocean. At issue in this particular case is the latter. When the EPA and the state of California renewed Oceanside’s NPDES permit in 2019, they required the city to abide by the “water control standards” laid out in California’s water control plans.

Those standards set out a variety of characteristics and limits that the state seeks to achieve for its native waters. It includes a mixture of measurable criteria, like the levels of certain pollutants that are allowed to be present, as well as subjective criteria, like whether there were visible oil slicks or sewage debris. The city argued strenuously against this requirement, claiming that it imposed an unfair burden on the city’s ability to meet the terms of its permit.

“The Generic Prohibitions make compliance with the CWA elusive, because a water body’s ability to meet water quality standards at any time depends on pollutants that all sources—not just San Francisco—contribute,” the city argued in court filings. “San Francisco consequently lacks advanced notice of how much it must control its discharges without violating the Generic Prohibitions.” Instead, the city argued, the permit should specify how much it is allowed to discharge into the Pacific.

For the city, this question is no mere technicality. The Clean Water Act can be enforced by both agency actions and private lawsuits against violators. At the same time, the law includes what is known as a “permit shield” provision. As long as a permit holder is in compliance with the terms of the permit, they are immune from private and public enforcement lawsuits. This allows permit holders to avoid potentially expensive litigation if regulations change during the term of their permit.

San Francisco argued, however, that the generic prohibitions “strip” it of its protections by opening it up to enforcement in ways that it cannot predict. Since the permit shield only applies if it is in compliance with the terms of its permit, the city claimed, creating undefined criteria for compliance makes it difficult to determine whether it is protected.

In a brief opposing the request for review, the Environmental Protection Agency said there was nothing vague about the restrictions in the permit. It noted that they were linked to specific requirements in California’s own water control regulations and that the city had “‘not identified’ any ‘language in any particular water quality standard’ that petitioner believes to be ‘vague or insufficiently clear,’” pointedly paraphrasing from the city’s own brief.

The agency also argued that there was nothing particularly novel about its requirement. It noted that the agency’s own policy for combined-sewer overflows, which was enacted in 1994, had long required that permits “‘should at least require’ compliance ‘with applicable water quality standards, expressed in the form of a narrative limitation’—i.e., a limitation stated in qualitative, rather than quantitative, terms.” The EPA noted that Congress has allowed that approach to survive in subsequent legislation and that California has included the requirements in nearly every individual permit it has approved since the early 1990s.

On those grounds, the Ninth Circuit Court of Appeals rejected the city’s challenge to the permits last July. Judge William Fletcher, writing for a 2–1 majority, described the “generic” or “narrative” restrictions as a “backstop.” He concluded that they were designed “to ensure that permitted discharges protect the water quality of the Pacific Ocean if the specific technological and water-quality based effluent limitations fail to achieve compliance with the CWA.” Judge Daniel Collins dissented, pointing to a Second Circuit decision that had previously held that the EPA must be more specific in its NPEDS permits.

Cheering on San Francisco are a variety of business groups and trade associations, including the National Mining Association, the American Farm Bureau, the American Petroleum Institute, the National Association of Manufacturers, the Fertilizer Institute, and many others. The groups warned the court that allowing the EPA to impose generic requirements could open their members up to “potentially ruinous” consequences from public and private enforcement actions.

“Congress created the CWA’s Permit Shield to allow regulators to impose the specific effluent limitations that are necessary to protect water quality, while providing permittees fair notice of their regulatory obligations and security from unexpected CWA liability,” they told the court. They claimed that the Ninth Circuit’s ruling “effectively eliminates these protections in the Nation’s largest circuit because operators now cannot know whether they are complying with their permits.”

There is good reason to believe that the Supreme Court will be sympathetic to these claims. Two years ago in Sackett v. EPA, the court ruled in a 7–2 decision that nearly half of the nation’s wetlands no longer came under the definition of “waters of the United States” and thus fell outside the CWA’s protections. Justice Elena Kagan noted in her dissenting opinion that Justice Samuel Alito, the majority opinion’s author, eagerly accepted the plaintiffs’ narrative in that case.

“Congress, the majority scolds, has unleashed the EPA to regulate ‘swimming pools and puddles,’ wreaking untold havoc on ‘a staggering array of landowners,’” she wrote, with an undercurrent of sarcasm. “Surely something has to be done; and who else to do it but this Court? It must rescue property owners from Congress’s too-ambitious program of pollution control.”

If that perspective wins out again in this case, San Francisco will have a freer hand when it comes to dumping pollutants into the Pacific Ocean. So too may a variety of American businesses and industries that have chafed against the crushing burdens of environmental regulation. In trying to extricate itself from stricter water quality rules, one of America’s most liberal cities might make it harder for everyone else to enforce them.