In a recent decision made on May 28, the Supreme Court agreed to hear an appeal from San Francisco against a federal appeals court ruling which allows the Environmental Protection Agency (EPA) to issue discharge permits. These permits order cities not to pollute water bodies “too much,” but do not specify any particular limitation. The central issue here is whether or not the EPA has the authority to impose generic prohibitions in National Pollutant Discharge Elimination System permits, which can lead to enforcement for those who run afoul of water quality standards without specifying the exact limits to which these discharges should conform.
San Francisco argues that the EPA does not have the power to create generic provisions that penalize wastewater discharge permit holders for exceeding water quality standards unless it provides specific limits on the discharges. The petition for certiorari (review) in City and County of San Francisco v. Environmental Protection Agency was granted without a signed order, and no justices dissented or provided any reasoning for their decision. For the case to advance to the oral argument stage, at least four of the nine justices must vote in favor of granting the petition.
In July 2023, the U.S. Court of Appeals for the Ninth Circuit upheld the EPA’s power to stipulate generic limits or “general narrative prohibitions” on discharges under the federal Clean Water Act. According to San Francisco’s petition from January 8, the city’s most recent wastewater discharge permit is one of many across the country that failed to inform permit holders about their compliance requirements under the Clean Water Act.
The city’s current permit states in general terms that San Francisco may not cause or contribute to “exceedances” of water quality standards, without providing any specific information on how much control over discharges is required to meet these standards. 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 necessary; however, generic prohibitions fail to set quantitative limits on pollutants that can be discharged and do not stipulate management practices that the city must adopt, according to the petition.
Since these vague prohibitions don’t provide the city with the guidance 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 quotes from Sackett v. EPA (2023) to emphasize this point.
San Francisco is not alone in facing this issue, as many permitholders across the country are also operating under similar generic water quality prohibitions that do not inform them of their pollution control obligations. The city seeks the Supreme Court’s intervention to prevent the EPA and states from putting permittees in an untenable position. Unless the Supreme Court provides guidance, the EPA and states will continue to issue permits with unclear language that makes it virtually impossible for permittees to determine whether they need to implement additional pollution controls to comply with the Act.
In response to the city’s petition, U.S. Solicitor General Elizabeth Prelogar urged the Supreme Court not to accept the case in her April 12 reply brief. She noted that San Francisco had previously filed a petition for review of EPA’s issuance of the permit with the agency’s Environmental Appeals Board, which denied the petition on the grounds that the narrative limitations provided did not violate the law and were based on erroneous findings. The board also rejected the city’s claim that these limitations were “so vague or insufficiently clear” as to make them unenforceable.
The Ninth Circuit was correct in dismissing the city’s contentions, and its decision does not conflict with any decision of the Supreme Court or another court of appeals. Therefore, the city’s petition should be denied, according to the brief. 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 arguments in the case are expected to be heard during the Supreme Court’s new term, which begins in October.