The Supreme Court on Tuesday struck down one of EPA’s long-standing tools for ensuring sewage treatment plants and industrial sites do not degrade water quality.
The 5-4 ruling in San Francisco v. EPA blocks the agency from holding the West Coast city liable for sewage discharged from a treatment plant into the Pacific Ocean based on language in its current wastewater permit.
Specifically, EPA cannot enforce provisions that “make a permittee responsible for the quality of the water in the body of water into which the permittee discharges pollutants,” according to the opinion, written by Justice Samuel Alito. Instead, EPA must be specific about what permit holders can and cannot do, such as by imposing limits on each specific pollutant released by a facility, the court ruled.
At issue in the case are permits issued under EPA’s National Pollutant Discharge Elimination System, a key Clean Water Act tool for safeguarding rivers, lakes and streams nationwide. The ruling allows EPA to continue to use narrative permit language pertaining to water quality in some cases, instead of only numerical limits, but sets up a massive workload for the agency and other permit writers.
“The majority is saying EPA can still protect water quality if it just invests more staff time,” said Sam Sankar, senior vice president for programs at Earthjustice. “I guess they haven’t heard that Trump is gutting the agency.”
Justice Amy Coney Barrett led a partial dissent, in which all three liberal justices joined. Among other concerns, she wrote that EPA and state permitting agencies often need to include less-than-specific language in wastewater permits to properly enforce the Clean Water Act.
The ruling is the second from the high court in two years that curbs EPA’s powers under the landmark 1972 law.
It pitted one of the most liberal cities in America — San Francisco — and trade groups like the U.S. Chamber of Commerce against the nation’s top environmental regulator.
In a statement Tuesday, the National Mining Association praised the court for restoring “proper limits to EPA’s authority” and ensuring businesses know how to adhere to their wastewater permits.
While the decision is another loss for EPA, the opinion didn’t go as far against the agency as it could have, said Robin Kundis Craig, a law professor at the University of Kansas.
“If you’re going to go against the EPA,” Craig said, “they kept it to about as narrow a holding as possible.”
The biggest practical impact of the ruling is that EPA and states will have to rework a lot of permits, said Kevin Minoli, a partner at the law firm Alston & Bird.
EPA will have to do that work under the leadership of an administration that is eliminating vast swaths of federal workers and is eyeing massive budget cuts for the nation’s environmental regulator.
“There are a lot of permits that have the kind of requirements that the Supreme Court now says states and the EPA can’t include,” Minoli said.
An EPA spokesperson said the agency was reviewing the decision. San Francisco did not respond to a request for comment.
At the heart of the dispute is San Francisco’s Oceanside wastewater treatment plant. The facility has been accused of discharging huge quantities of raw sewage mixed with stormwater into the Pacific Ocean on rainy days for many years.
Betsy Southerland, a retired EPA scientist in the Office of Water, said she hopes that California and EPA can still attempt to hold the city accountable for those discharges.
“EPA will have to do detailed monitoring of stormwater discharges and set numerical permit limits for every single pollutant of concern,” Southerland said in an email. “I hope the state has enough data to set some numerical permit limits for one or more key pollutants that would require the city to treat.”
In the long term, however, the ruling could cause pollution from sewage to increase across the U.S., elevating the risk of waterborne diseases. Southerland called it “devastating” for water quality.
The permitting provisions that the court ruled against have been used for decades, said Patrick Parenteau, an emeritus professor at Vermont Law and Graduate School. Often, federal and state regulators do not know exactly what pollutants could be coming from a sewage treatment plant, which is why narrative language is used, said Parenteau, who worked in an EPA regional office in the 1980s.
In the dispute over San Francisco’s treatment plant, for example, the Justice Department has argued that the city refused to share information with EPA that would have allowed it to be more specific in its permit conditions.
“I was at EPA enforcing these permits. We’d much prefer to have numerical limits to enforce,” Parenteau said. “It’s much easier to do, but it doesn’t protect water quality.
“The practical effect of this [ruling] is really difficult to figure out,” he added, but it “will result in public health problems.”
