Supreme Court limits EPA authority over water quality standards

In a further limitation of the Clean Water Act, the U.S. Supreme Court ruled 5-4 in favor of the city and county of San Francisco that the Environmental Protection Agency could not hold polluters responsible when water quality fell below the agency's standards.

The decision reversed a divided 9th U.S. Circuit Court of Appeals panel ruling that had denied review of a National Pollutant Discharge Elimination System, or NPDES, permit for its Oceanside combined sewer system and wastewater treatment facility.

It is the latest defeat at the Supreme Court of EPA jurisdiction under the Clean Water Act, the 1972 federal law passed by Congress and designed to regulate water pollution.

Justice Samuel A. Alito Jr., an appointee of President George W. Bush who wrote for the majority, stated that permitees could not be held responsible for the quality of the water where effluent ended up, or what he described as "end-result" requirements.

"When a permit contains such requirements, a permittee that punctiliously follows every specific requirement in its permit may nevertheless face crushing penalties if the quality of the water in its receiving waters falls below the applicable standards," he wrote. City and County of San Francisco v. Environmental Protection Agency, 23-753 (S. Ct., filed Jan. 8, 2024).

Justice Amy Coney Barrett, an appointee of President Donald Trump, joined the three Democratic appointees on the court in partial dissent. "But when the technology-based effluent limitations are insufficient to ensure that the water quality standards are met, EPA has supplemental authority to impose further limitations," she wrote.

Barrett accused the majority of inventing a theory to defeat the EPA's arguments. "Receiving water limitations are not categorically inconsistent with the Clean Water Act," she concluded. "Because the Court holds otherwise, I respectfully dissent in part."

The 5-4 decision pitted the Supreme Court's five men - including Justice Neil M. Gorsuch, a Trump appointee who joined part of Alito's decision - against its four women. Legal observers say Barrett is the most moderate of Trump's appointees, and has sometimes sided, at least in part, with the three Democratic appointees, all women.

The case was pursued by San Francisco City Attorney David Chiu, and he had allies among business trade groups, including the National Mining Association and Chamber of Commerce of the United States of America.

The city argued that the EPA standards were too vague, leaving the city on the hook for billions of dollars in damages.

"This ruling makes clear that permitholders like San Francisco are responsible for what they discharge, and the EPA has the tools at its disposal to ensure water quality," Chiu and San Francisco Public Utilities Commission general manager Dennis Herrera wrote in a statement.

"But it's not lawful to punish permitholders for things outside of their control, such as the end-result water quality of a shared body of water, where many other factors affect water quality," they added, characterizing the decision as a narrow one.

The EPA did not respond to a message seeking comment on the ruling.

Environmental groups decried the decision.

"This Supreme Court ruling threatens one of our most fundamental environmental protections: the ability to hold polluters accountable for discharging untreated or partially treated sewage into our waterways," wrote Bruce Reznik, executive director of LA Waterkeeper. "By weakening the EPA's ability to enforce permit terms to protect water quality, the ruling leaves California vulnerable to increased water pollution."

In May 2023, the Supreme Court reversed the 9th Circuit. ruling 5-4 that Clean Water Act jurisdiction extends only to wetlands that have a continuous connection to larger bodies of water in a case concerning an Idaho couple seeking to build a house. Sackett v. Environmental Protection Agency, 21-454 (S. Ct., filed Sept. 22, 2021).