San Francisco vs EPA

A SCOTUS decision came down today in the case CITY AND COUNTY OF SAN FRANCISCO, CALIFORNIA v. ENVIRONMENTAL PROTECTION AGENCY. I wanted to make a quick couple of notes about it. Links to the decision:

This one was decided in a 5-4 vote with the majority being Alito, Roberts, Thomas, and Kavanaugh. Gorusch concurred with 2/3 of the decisions. Barrett wrote a dissent and Jackson, Kagan, and Sotomayor joined on it.

Summary of the issue

The EPA has the authority to regulate waterways under the 1972 Clean Water Act. It also gives EPA the authority to issue permits for limited emission of pollution into waterways. San Francisco, CA had a CWA permit for one of its sewage treatment facilities, and beginning in 2019 the EPA added two "end-result" provisions during the permit renewal process. These "end-result" provisions coupled permit compliance with the overall water quality of the ocean and bay. As cited from the decision's syllabus:

"The first of these [provisions] prohibits the facility from making any discharge that contribute[s] to a violation of any applicable water quality standard for receiving waters ... The second provides that the City cannot perform any treatment or make any discharge that create[s] pollution, contamination, or nuisance as defined by California Water Code section 13050"

San Francisco claimed that these two newly-added provisions were not within the EPA's authority and should not be enforceable because it holds them, as permit holders, responsible for the overall water quality of the whole bay whether they had control over its pollution sources or not. The EPA naturally disagreed and said that they did have the authority to institute such requirements.

Summary of majority decision

The majority ruled that the EPA does not have the authority to issue "end-result" provisions. They state that the Clean Water Act does not allow for generic end-result provisions based on how it uses the words "effluent limitations" and a few other terms in the relevant sections of the law. End-result provisions also place the onus of determining what steps are necessary for permit compliance on the permit holders themselves, despite the fact that this is supposed to be a responsibility of the EPA. They further state that requiring permit holders to "figure it out" makes compliance a nebulous and uncertain process, with potential financial penalties and criminal prosecution if they get it wrong.

The majority also points out that the only issue is with the end-result provisions specifically, not any other kind of limitation that the EPA may decide is appropriate. The majority's opinion states that there is broad ability for the EPA to set up what must and must not be done by permit holders as long as the compliance requirements are well defined and properly included in the CWA permit, and so the end-result provisions are not even necessary to achieve EPAs goals.

Summary of the dissent

The dissent states that the majority's understanding of how the terms "limitation" and related words are used are weak, and they claim that the 1972 Clean Water Act does in fact give the EPA the ability to place end-result provisions in permits because they fall under the category of "any other limitation" that can be done to ensure water quality. My reading has been limited so far and this is all I've been able to discern. I'll update later if I learn something more.

My two cents

I haven't had much time to read either the majority opinion or the dissent yet, but I'll say something here anyway.

My initial feeling is to agree with the majority mostly for "how the law should work" reasons. Permits like the ones issued under the CWA put legal liability on the permit holders, and if that is the case then liabilities should be both well defined and compliance actions should be within the bounds of what is possible for the permit holder to influence. In this case it is not possible for San Francisco's wastewater treatment facilities to individually control the overall pollution level of the SF Bay or Pacific ocean, so they should be under no legal liability for whether the overall quality of the water meets pollution standards or not (especially for the purposes of this permit). There is also no reason to require those sorts of nebulous rules, at least from my non-expert stance. I know of nothing that would prevent the EPA from creating a rule that set the limits of how much pollutant could be emitted based on, say, using the water quality as a benchmark. That is, a rule like "you can discharge X amount of pollutant as long as the surrounding water is of at least quality Y." A ruleset with that sort of construction can achieve the same results as an end-provision rule but with a well defined set of criteria and sets of actions that may, must, or must not be taken depending measurable values of water quality.

From a responsibility standpoint I also think that defining these criteria should be the task of the EPA. I would make a case that "nobody can care about everything," so the responsibility for figuring out the metrics and steps that are needed to ensure high water quality *should* fall onto the agency that has been created specifically for that purpose. They are the ones who are paid to care about water quality, and they should be the ones who have to do the homework for figuring out how to ensure it. Delegating that whole responsibility to some permit applicant seems to be something that a bureaucrat would do for cover-my-ass reasons and is almost certainly going to be doomed to failure from an environmental standpoint (at which point the permit holder will then be faced with large fines that will be happily collected by EPA).

Regarding how I read the dissent, I am not a lawyer so determining whether the CWA actually permits arbitrary and nebulous requirements for permit holders is beyond my ability. Since the dissent seems to hinge on the legal definitions and norms of the law itself it is tough for me to give much weight to the dissent's argument and I will defer to the majority's interpretation instead.