After decades of putting its constituents through permitting purgatory, San Francisco took the other side and won. In doing so, it avoided billions of dollars in fines from the Environmental Protection Agency because the Supreme Court held on Tuesday that the Clean Water Act did not give the agency the power to punish the city for accidental discharges of pollutants after it complied with previously issued permits.
Passed in 1972, the Clean Water Act superseded the Federal Water Pollution Control Act of 1948, which had empowered the attorney general to collect civil damages in federal court from polluters who created a “public nuisance” in interstate waters. This system proved ineffective as there was always more than one polluter of any body of water, and it was difficult for courts to determine who was responsible for what percentage of the pollution in any case.
The new law made it easier for the then-new EPA to police the nation’s waters by requiring polluters to obtain a permit before emitting pollutants into any water. The EPA could, therefore, monitor and prescreen which entities were responsible for which pollutants. The EPA’s new permitting system came with some sharp teeth, including fines of up to $25,000 a day and criminal penalties even for merely “negligent” permit violations.
The Clean Water Act included one shield to ensure that economic activity and day-to-day life for individuals were possible. It was a “permit shield” that allowed people and businesses to escape civil and criminal penalties if EPA certified with permits that they were following industry best practices for minimizing pollution.
For decades, San Francisco has processed human waste in its water system. This included operations at an Oceanside facility that treated wastewater from over 250 miles of sewer, serving 250,000 residents. Oceanside usually copes with human wastewater and stormwater just fine. But sometimes, after heavy rain, the system is overwhelmed, and untreated sewer water is released into the Pacific Ocean. Because the Oceanside facility had proper permits from the EPA, including more than 300 pages of compliance protocols, it had a “permit shield” and was held harmless.
But in 2019, the EPA added two “end result” requirements to the Oceanside facility permit to hold it liable for all pollutants discharged into the ocean even if it complied with all best practices detailed in its permit. To prevent pollutants from reaching the sea even during the heaviest rains, San Francisco would have to spend $10 billion on new infrastructure. Instead, it decided to sue the EPA, arguing the “end result” requirements were inconsistent with the Clean Water Act and its permit shield.
Writing for the majority, Justice Samuel Alito agreed. “Because of the harsh penalties for violating the terms of a permit, the permit shield is invaluable,” Alito wrote. “Because of it, a discharger that complies with all permit conditions can rest assured that it will not be penalized. But the benefit of this provision would be eviscerated if the EPA could impose a permit provision making the permittee responsible for any drop in water quality below the accepted standard. A permittee could do everything required by all the other permit terms. It could devise a careful plan for protecting water quality, and it could diligently implement that plan. But if, in the end, the quality of the water in its receiving waters dropped below the applicable water quality levels, it would face dire potential consequences. It is therefore exceedingly hard to reconcile the government’s interpretation of [the statute] with the permit shield.”
REPUBLICANS MUST SLOW MEDICAID SPENDING
San Francisco is, in most cases, a bastion of environmentalist stagnation, but in this one, it had some unusual allies against the EPA, including the American Farm Bureau, the National Mining Association, and the National Association of Home Builders. “Today’s ruling restores the proper limits to EPA’s authority and returns certainty to responsible businesses seeking to adhere to the requirements of their permits,” the National Mining Association said in a statement. “This return to the text and intent of the Clean Water Act eliminates the widespread regulatory uncertainty and litigation risk presented by the flawed Ninth Circuit decision.”
The Democratic Party running San Francisco and California may not like food growers, miners, house builders, and waste management companies having any degree of certainty. Fortunately, conservatives on the Supreme Court have again rescued the nation from out-of-control bureaucrats inflicting prohibitive costs for negligible environmental benefit.
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