The US Supreme Court sided with the city and county of San Francisco on Tuesday in a dispute with the Environmental Protection Agency (EPA), finding the EPA cannot penalize the city if water quality levels fall below the agency’s standards when the city is, under permit, discharging pollution, including sewage, into the Pacific Ocean.
The court found that the EPA, under the Clean Water Act of 1972 (CWA), was entitled to impose specific requirements on entities that discharge pollutants to prevent pollution overall, but it could not find permitted polluters responsible whenever water quality levels fell below the agency’s standards.
In a statement, the San Francisco Public Utilities Commission called the court’s finding “a good government decision that assures certainty in water quality permitting and that every permittee has predictable, knowable standards to protect water quality.”
Many other cities, including Boston, New York and Washington DC, submitted amicus briefs supporting San Francisco’s position.
The Northern California municipality challenged the CWA’s National Pollutant Discharge Elimination System, which makes it unlawful to discharge pollutants into covered bodies of water without a permit. They specifically challenged its “end-result” requirements that find entities that were permitted to discharge pollutants were responsible for the quality of the water where pollutants are being discharged, rather than spelling out what an entity should do or refrain from doing to prevent such contamination from the pollution.
“First, end-result requirements would negate the CWA’s ‘permit shield’ protecting compliant permittees from liability,” the court wrote in its opinion. “Second, EPA’s interpretation provides no mechanism for fairly allocating responsibility among multiple dischargers contributing to water quality violations.
“The agency has adequate tools to obtain needed information from permittees without resorting to end-result requirements.”
In her dissent, Justice Amy Coney Barrett argued there was no need for “a statutory re-write” because there are other mechanisms in place for permittees to have their concerns heard. She also acknowledged there were genuine questions regarding the shortfalls by permittees, including San Francisco.
“The concern that the technology-based effluent limitations may fall short is on display in this case— discharges from components of San Francisco’s sewer system have allegedly led to serious breaches of the water quality standards, such as ‘discoloration, scum, and floating material, including toilet paper, in Mission Creek.’”
Justice Samuel Alito delivered the 5-4 decision, in which Chief Justice John Roberts and Justices Brett Kavanaugh and Clarence Thomas joined, along with Justice Neil Gorsuch, who joined all but Part II of the decision. Barrett penned a dissent, in which Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson, the court’s liberal minority, joined.
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