The Supreme Court agreed on May 28 to hear San Francisco’s appeal of a federal appeals court ruling that allows the Environmental Protection Agency (EPA) to issue discharge permits that order cities not to pollute water bodies “too much” but don’t provide a specific limitation.
The issue is whether the EPA is allowed to impose generic prohibitions in National Pollutant Discharge Elimination System permits that subject permit holders to enforcement for running afoul of water quality standards, without identifying the specific limits to which the discharges are supposed to conform.
San Francisco argues the EPA may not develop generic provisions that penalize wastewater discharge permit holders for going beyond water quality standards unless it specifies limits on the discharges.
The petition for certiorari, or review, in City and County of San Francisco v. Environmental Protection Agency, was granted in an unsigned order.
No justices dissented. No reason was provided for the decision. At least four of the nine justices must vote to grant the petition for it to advance to the oral argument stage.
In July 2023, the U.S. Court of Appeals for the Ninth Circuit affirmed the EPA’s power to stipulate generic limits or “general narrative prohibitions” on discharges under the federal Clean Water Act.
According to its petition dated Jan. 8, San Francisco’s most recent wastewater discharge permit is one of many issued across the country that failed to notify the permit holders what they must do to comply with the Clean Water Act.
The city’s permit states in general terms 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.”
These generic water quality prohibitions put San Francisco at risk of enforcement for contributing to excessive pollution, without defining in advance what constitutes excess or which pollutants the city might need to control. The city has already spent billions of dollars to meet the Act’s mandates and is prepared to spend more if the law requires it; however, generic prohibitions fail to set quantitative limits on pollutants the city may discharge and do not stipulate management practices that the city must adopt, the petition states.
Because these vague prohibitions don’t provide the city with the guidance that it needs to assess whether it should take further steps to limit its discharges, the EPA requirements expose San Francisco to the “crushing consequences” of the statute’s enforcement machinery without providing prior notice of what the law requires, the petition states, quoting from Sackett v. EPA (2023).
San Francisco isn’t alone in facing this problem.
“Permitholders across the country must attempt to operate under permits containing generic water quality prohibitions that do not tell them their pollution control obligations. Like San Francisco, they face the prospect of enforcement without prior notice of what they could have done to comply,” the petition states.
“San Francisco seeks the Court’s intervention to stop EPA and states from putting the City and other permittees in this untenable position.”
Unless the Supreme Court provides guidance, the EPA and states “will continue to issue [wastewater] permits that make it virtually impossible for permittees to determine whether they need to implement additional pollution controls to comply with the Act,” it states.
In an April 12 reply brief, U.S. Solicitor General Elizabeth Prelogar urged the Supreme Court not to accept the case.
She noted that the city had previously filed a petition for review of EPA’s issuance of the permit with the agency’s Environmental Appeals Board. The board denied the petition, rejecting the city’s argument that the narrative limitations provided violated the law and were based on erroneous findings. The board also refused to accept the city’s claim that the limitations were “so ‘vague’ and ‘unclear’ that [they failed] to provide ‘fair notice’ to [the city] of its legal obligations.”
The board didn’t determine that the language of the narrative limitations was “unclear,” nor did it find it “unclear which water quality standards apply under the permit.” The board also held that the city had “not identified” any “language in any particular water quality standard” that the city believed was “vague or insufficiently clear.”
The Ninth Circuit was correct to reject the city’s contentions, and its decision doesn’t conflict with any decision of the Supreme Court or another court of appeals, so the city’s petition should be denied, the brief states.
Specifically, the circuit court rejected the city’s argument that the narrative limitations in the permit were insufficiently detailed to comply with the Clean Water Act. The permit makes clear what the applicable water standards are, the government said.
Oral argument in the case is expected to be heard in the Supreme Court’s new term that begins in October.
