Supreme Court justices on Oct. 16 heard arguments in a challenge to the U.S. Environmental Protection Agency’s (EPA) wastewater discharge permitting system, which San Francisco claims violates federal law.
The city and county of San Francisco argue in the appeal that the EPA’s “vague” limitations on how much pollution may be present in wastewater discharged by water utilities is arbitrary and unfair.
The EPA grants permits to local governments and water management authorities under the National Pollutant Discharge Elimination System (NPDES), with the aim of limiting the amount of pollution flowing from “point sources” into 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.”
San Francisco argues it’s unfair to hold it responsible for polluted Pacific Ocean beaches near the city because the pollution may have come from outside sources.
Meanwhile, the EPA argues that the city’s wastewater system cannot cope with runoff during storms, and this leads to pollution being released into the ocean.
The city says it is facing potentially billions of dollars in fines for violating its permit, but the EPA said San Francisco’s actual financial exposure is more likely in the millions of dollars.
Instead of 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 EPA’s Environmental Appeals Board 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 “general narrative prohibitions” on discharges under the Clean Water Act.
San Francisco Deputy City Attorney Tara Steeley said during oral arguments Oct. 16 that the generic prohibitions impose “indeterminate requirements” and this exposes the city “to crushing criminal and civil penalties even when it otherwise complies with its 300-page permit.”
Holders know how to comply with permits, which specify discharge limitations, but the generic prohibitions “don’t tell us what in addition that we need to do,” she said.
“What San Francisco can control is our own discharges. We cannot control the receiving water conditions,” she said.
Steeley said the EPA sets the permit limitations in advance, “so they’re anticipating what the discharge will do to the water body.” But the city doesn’t monitor water conditions in real time—test results arrive nine months after testing, she said.
“So San Francisco cannot shift on a dime. We don’t have the information necessary to know,” Steeley said until she was interrupted by Justice Sonia Sotomayor.
“I’m sorry, no one’s asking you to shift on a dime,” Sotomayor said. “Nothing in the EPA works on a dime.”
The agency is asking the city “to take the steps necessary to control situations that develop,” the justice said.
Justice Clarence Thomas asked if the EPA is allowed to impose generic limitations.
Steeley said the agency “only has authority when authorized,” and Section 301 of the Clean Water Act “is silent about generic prohibitions. It doesn’t authorize them.”
Frederick Liu of the U.S. Department of Justice said San Francisco is “wrong to argue that limitations like the ones challenged here are never okay.”
Under the Clean Water Act, the agency may issue limitations when it is uncertain that the effluent limitations in the permit are adequate to protect water quality, he said. The agency cannot “impose limitations of any kind that are unconstitutionally vague.”
The city’s old sewer system is inadequate and it failed to update its long-term control plan which meant the agency lacked the information it needed “to develop more tailored limitations,” he said.
The Supreme Court is expected to issue a ruling in the case by June 2025.
