Supreme Court to Consider Challenge to ‘Vague’ EPA Rules

May 28, 2024 by Dan McCue
Supreme Court to Consider Challenge to ‘Vague’ EPA Rules
San Francisco. (Photo by NinJason via Pixabay)

WASHINGTON — The Supreme Court on Tuesday agreed to hear San Francisco, California’s, challenge to the Environmental Protection Agency’s authority to tell cities not to pollute water bodies without setting specific limits to guide them.

The central issue in the case revolves around the city’s practice of discharging raw sewage into the Pacific Ocean during heavy rains.

Though the practice has been going on for years, San Francisco authorities say the vagueness of the wastewater discharge permit issued by the EPA exposes the city to substantial liability under the Clean Water Act.

Helping to stoke their concerns was a recent agency decision to file an enforcement action over wastewater discharges into San Francisco Bay, which are covered by a separate, and in the city’s view, similarly vague permit.

Last year, a divided 9th U.S. Circuit Court of Appeals upheld the EPA’s permits.

That prompted San Francisco to petition for Supreme Court review, arguing that if the 9th Circuit’s decision were allowed to stand, it would “eviscerate the protections of the CWA’s Permit Shield.”

The federal government responded in a brief that argued the EPA’s water quality standards could not be more clear, and that those standards, “in turn, establish specific limits to which … discharges must conform.”

The case could have far reaching import. Like San Francisco, many of the United States’ older cities rely on aging and often overmatched sewer systems that convey both sewage and rainwater away from residences, office buildings and businesses.

Under benign weather conditions, the raw sewage is treated before being discharged and put to use for irrigation; when it rains heavily, however, treatment facilities can’t cope with the surging, soiled waters, resulting in the need to discharge them quickly.

San Francisco maintains that it has spent billions of dollars on water- and sewer-related infrastructure; however, despite improvements to the system, it contends the generic language used in the permit documents would potentially make it liable for hundreds of millions of dollars in penalties and other relief.

Dan can be reached at [email protected] and @DanMcCue

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