During the first week of oral arguments of its new term, the U.S. Supreme Court heard City & County of San Francisco v. Environmental Protection Agency. (Audio of the roughly 90-minute proceedings can be found here.)
This case marks the court’s first look at the Clean Water Act following its decimation last term of the Chevron deference doctrine in Loper Bright Enterprises v. Raimondo (covered by ELM here), in which the court reversed long-standing precedent to hold that federal courts must exercise independent judgment in deciding whether a federal agency has acted within its statutory authority rather than defer to an agency’s statutory interpretation. (For further background on Chevron, see this pre-Loper Bright ELM post).
The long-ranging effects of San Francisco can be demonstrated alone by those who submitted amicus briefs, and, fascinatingly, in which party’s support. For example, the States of California, Washington, Massachusetts, and other states, along with a group of small business owners, amongst others, were amici curiae on behalf of the Respondent EPA, whereas amici curiae supporting the Appellant San Francisco included national mining entities, home builders, and wastewater & sewage groups.
In San Francisco, the City and County of San Francisco initially sued the EPA, arguing that existing laws made the city responsible for a greater share of water pollution than it should be. Indeed, according to the lawsuit, the city argued that it was unfair for San Francisco to be expected to control the water quality in San Francisco’s famous bay, especially since San Francisco’s older sewer system runs waste- and stormwater through the same piping, resulting in overflows into the Pacific Ocean during heavy rainfall. The Clean Water Act requires cities to obtain National Pollutant Discharge Elimination System (NPDES) permits for the type of discharges at issue. Roughly five years ago, however, when the EPA and California’s Regional Water Quality Control Board issued the city’s treatment facility’s new NPDES permit, there were two provisions with which the city and county took issue:
“Narrative” prohibitions generally disallowing the violation of water quality standards when pumping water into the Pacific Ocean; and
A requirement that the city update its long-term combined sewer overflow control plan.
On Oct. 16, the city argued these two provisions are not consistent with the Clean Water Act, and it is only asking for clarification on the limitations of such generic prohibitions for the purposes of compliance since, according to San Francisco, the Clean Water Act does not specify exactly how much untreated wastewater and sewage can be released into local waterways. Moreover, the city argued that it should not be held responsible for the quality of water that “receive” the overflow wastewater near treatment plants rather than specific discharges from the plants themselves. In response, the EPA claimed that the Clean Water Act does not contain the limitation that the city is essentially asking the Supreme Court to establish, which would prevent the EPA from ensuring polluters do not endanger public health and that, moreover, ignores the fact that large bodies of water change at any given moment. EPA officials have even described instances in which sewage flowed so high up into the streets of the bay area that it entered people’s homes.
Regardless, if San Francisco convinces the court of its argument, the EPA could be deprived of a regular vehicle through which it attempts to reduce water pollution, thereby making it more difficult for regulators to issue and enforce NPDES permits.
Although at least a couple of the justices sought to seek a narrower framing of the issue by framing the general requirements as a way of providing San Francisco some flexibility, multiple justices who previously signed onto Loper Bright’s majority opinion not only found the amici briefs submitted in support of San Francisco compelling, but also emphasized the punitive nature of enforcement, which could be detrimental in various ways to cities with older wastewater systems that would be costly to replace. Chief Justice John Roberts, however, seemed to address the question at issue directly when he explained to the EPA’s lawyer that Congress had updated the Clean Water Act to specifically address the lack of clarity as to specific limitations that San Francisco was citing. In response, the EPA attorney conceded that the agency would have preferred to use specific requirements but could not do so in this specific case because the city had declined to provide the type of data the agency needed to set any goals.
Regardless of how San-Francisco-specific this argument and the facts at issue were to San Francisco and its majestic neighboring ocean, this decision will have dramatically important national application in administrative law across federal agencies, given the centrality of the application of Loper Bright and the ghost of Chevron to its fate. Whether the EPA convinced the Supreme Court to exorcise those demons and revive a piece of the Chevron soul remains an open question. But if the justices’ questioning during oral argument were any kind of clairvoyant spirit guide, it seems that the court would prefer the ghosts to stay put.
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