EPA and San Francisco's Looming Mistake

San Francisco and the US Environmental Protection Agency have brought a longstanding water dispute to the United States Supreme Court. That is a big mistake. If ever a case should be resolved without a Supreme Court decision, this is it. The city and EPA can craft a resolution that meets both sides’ needs. The Supreme Court, in contrast, is likely to use the case to advance an antiregulatory agenda that neither EPA nor the city supports.

The case is about sewage. San Francisco, like many cities, has old sewage-disposal systems called combined sewer overflows, or CSOs. When heavy rains fall, and the city’s wastewater treatment plants can’t handle all the water coming through the city’s sewers, these CSOs release untreated wastewater directly to the Pacific Ocean and the Bay. That’s a problem, and everyone agrees it should be fixed, but the fixes are too expensive to implement all at once. State and federal water quality regulators think that city isn’t moving quickly enough or being careful enough with the existing systems. The city, which has spent millions to address the problems, disagrees.

The specific legal issue is much narrower. San Francisco operates its wastewater systems under permits issued by EPA (for the ocean discharges) and the state (for the discharges to the Bay). The permits are long and complicated documents, but the city has zeroed in on two provisions, both of which it argues are much too vague. These vague provisions, the city argues, leave the city unsure what its obligations are, and they give EPA and the state the ability to decide, after the permit goes into effect, what will count as a violation, and to penalize the city for conduct the city couldn’t know was illegal. EPA disagrees, arguing that the provisions provide enough guidance and that these sorts of provisions were anticipated by 1980 amendments to the Clean Water Act. The Ninth Circuit Court of Appeals sided with EPA, but the city asked the Supreme Court to take the case, and the Court has done so.

That’s not good for either side. Involving the Supreme Court in an environmental case is a bit like bringing in the mafia to resolve a neighborhood dispute. The Justices have their own agendas, and those agendas are not likely to align with the broader interests of the city or EPA.

San Francisco’s broader interest is in strong environmental protection. That’s not just because San Franciscans care about environmental quality, though they certainly do, or because the city is threatened by climate change and other environmental hazards, though it certainly is. It’s also because even if San Francisco is at odds with EPA in this particular dispute, it needs powerful state and federal water quality laws. It is, after all, a city surrounded on three sides by water.

The Supreme Court, meanwhile, has an axe to grind with water-quality regulation. Just last year, in a case called Sackett v. Environmental Protection Agency, the Court gutted the Clean Water Act, eliminating regulatory protections for thousands of streams and wetlands across the nation. Justice Alito’s majority decision made no effort to conceal his animus for the statute or for environmental regulation more generally. He repeatedly lamented the “crushing” burdens the Act supposedly imposes, while saying hardly anything about the benefits broad stream and wetland protections provide, and he and his fellow justices pointedly ignored the Act’s language about the importance of improving water quality. No one who cares about clean water should want this Court to hear another Clean Water Act case.

Nor was that case a one-off. In a long series of recent decisions, including some involving climate change, the conservative justices have made it quite clear that they are actively searching for opportunities to limit EPA’s authority and hamstring environmental regulation. They are doing so not just by deciding particular cases against EPA, but also by articulating sweeping interpretive principles designed to help anti-environmental litigants in future cases—or to deter government agencies from regulating at all. To strengthen those principles in a case brought by liberal San Francisco, of all litigants, would be, from the Court’s perspective, a delectable irony.

EPA and the city should do everything they can to resolve this case without the justices weighing in.  That should include EPA offering to rewrite San Francisco’s permit, replacing the vague requirements with something more specific. EPA (and the states, which write most Clean Water Act permits) also can pursue similar revisions for the many other permits that contain similar terms. That would result in clearer permits that are easier to understand—which is something industry and environmental advocates alike have wanted. And both sides would be in control of their own disagreement, rather than leaving its resolution up to a hostile Supreme Court.

No one in this dispute is being unreasonable. San Francisco has good reasons to want clearer permit requirements, and it has tried to craft its arguments narrowly. EPA and the state have good reasons to defend their discretion to use broader terms. And in more normal times, Supreme Court review would be a good way to resolve the disagreement. But when it comes to environmental law and the Supreme Court, these are not normal times. The city, the state, and EPA would be much better off resolving their disagreements on their own.

-Dave Owen