EPA Urges Supreme Court to Dismiss San Francisco’s Appeal Over Wastewater Rules

The U.S. Environmental Protection Agency in Washington on Jan. 4, 2024. Madalina Vasiliu/The Epoch Times

The U.S. Environmental Protection Agency (EPA) urged the Supreme Court on Aug. 26 to throw out San Francisco’s challenge to federal wastewater discharge regulations.

The government’s new brief offers insights into the oral arguments the federal government will make when the court hears the case, City and County of San Francisco v. EPA, on Oct. 16.

The issue in the appeal is whether the agency is allowed to impose vague limitations on how much pollution may be present in wastewater discharged by water utilities.

The EPA grants permits to local governments and water management authorities under the National Pollutant Discharge Elimination System (NPDES), with the aim of limiting water pollution by regulating point sources that send water-borne pollutants to bodies of water.

The agency defines a point source as “any single identifiable source of pollution from which pollutants are discharged, such as a pipe, ditch, ship or factory smokestack.”

In its petition filed on Jan. 8, San Francisco stated that discharge permits issued by the EPA direct cities not to pollute water bodies “too much” but don’t provide a specific limitation and that this opens the door to uncertainty and abuse.

According to the city, its most recent permit is one of many issued across the country that failed to notify the permit holders about what they must do to comply with the federal Clean Water Act.

The city’s permit states that San Francisco may not cause or contribute to “exceedances” of water quality standards. Instead of simply advising the city “how much it needs to control its discharges to comply with the Act,” the EPA’s “generic prohibitions leave the City vulnerable to enforcement based on whether the Pacific Ocean meets state-adopted water quality standards,” the petition states.

San Francisco challenged the permit, and in December 2020, the Environmental Appeals Board, an EPA tribunal, rejected the challenge.

In July 2023, a divided U.S. Court of Appeals for the Ninth Circuit rejected San Francisco’s appeal and affirmed the EPA’s power to specify generic limits or “general narrative prohibitions” on discharges under the Clean Water Act.

The Supreme Court approved the city’s petition without comment on May 28. On July 26, the court scheduled oral arguments for Oct. 16.

Arguments Before the Supreme Court

In the Supreme Court case, San Francisco is arguing that the EPA misinterpreted the Clean Water Act when it issued a discharge permit that deviated from the framework of the statute.

In its Aug. 26 filing, the EPA says that the Clean Water Act “generally prohibits the discharge of any pollutant into navigable or ocean waters,” with the exception of the NPDES program, under which the EPA “may issue permits for discharges that meet certain requirements.”

The city rejects the notion that the EPA is allowed to impose conditions on an NPDES permit, including that “a permittee’s discharges not have specified adverse effects on the quality of the receiving waters.” Instead, the city argues that the agency only has power to impose “effluent limitations,” according to the brief signed by U.S. Solicitor General Elizabeth Prelogar.

Effluent is liquid waste or sewage discharged into a body of water.

The city’s view of the EPA’s authority is too narrow, the government says.

The Supreme Court previously rejected the city’s argument that the statute allows only “effluent limitations” in National Association of Manufacturers v. Department of Defense (2018). In that case, the court recognized the agency’s authority to impose effluent limitations as well as “other limitation[s]” related to discharges of pollutants that do “not fall within the precise statutory definition of ‘effluent limitation,’” the brief says.

The EPA said in its brief that the city is wrong to argue that the EPA’s power when issuing NPDES permits is limited to effluent limitations and that the appeal should be dismissed.

A San Francisco official said the city was considering the new filing in the case.

“We are evaluating the EPA’s brief and will respond in court,” Alex Barrett-Shorter, deputy press secretary for the office of San Francisco City Attorney David Chiu, told The Epoch Times by email.