In a significant decision on Tuesday, the U.S. Supreme Court heightened the challenges faced by environmental regulators concerning water pollution control. The ruling favored San Francisco in a contentious debate over the discharge of untreated sewage during instances of heavy rainfall.
In a close 5-4 decision, the court’s conservative wing decided that the Environmental Protection Agency (EPA) had overreached its authority granted by the Clean Water Act. The court examined water pollution permits that provided ambiguous instructions for maintaining water purity, ultimately finding them unacceptable.
Justice Samuel Alito, writing for the majority, explained that the EPA is authorized to set explicit discharge limits. However, he criticized the agency for imposing “end-result” conditions that effectively require municipalities and counties to ensure water quality standards—impacting bodies of water like the Pacific Ocean, where wastewater is poured—are upheld.
Alito voiced concerns stating, “When a permit contains such requirements, a permittee that punctiliously follows every specific requirement in its permit may nevertheless face crushing penalties if the quality of the water in its receiving waters falls below the applicable standards.”
In a noticeable dissent, conservative Justice Amy Coney Barrett sided with the three liberal justices, suggesting that even when discharge limits are adhered to, they might not guarantee compliance with water quality standards. Barrett emphasized that, in the current case, pollutants from San Francisco’s sewer systems have reportedly resulted in severe violations of these standards, citing examples like the presence of “discoloration, scum, and floating material, including toilet paper, in Mission Creek.”
This case witnessed a rare alliance comprising the liberal city of San Francisco, alongside energy companies and business entities.
Kevin Minoli, a former acting general counsel for the EPA, noted that the agency has distributed thousands of narrative permits over the years. These permits have essentially served as safeguards, ready to intervene when specific discharge regulations fail to ensure sufficient water quality. Minoli speculated what would replace these permits following the court’s verdict.
Nevertheless, Alito minimized the potential repercussions of the decision, asserting that the EPA still possesses “the tools needed” to maintain compliance with water quality standards.
