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City and County of San Francisco v. EPA
Under the Clean Water Act, the Environmental Protection Agency and authorized state agencies issue permits that impose requirements on entities that wish to discharge pollutants into the waters of the U.S. A critical component of the CWA regulatory scheme is the National Pollutant Discharge Elimination System, which makes it unlawful to discharge pollutants into covered bodies of water unless authorized by permit.
These permits typically include “effluent limitations” on discharges that restrict the “quantities, rates, and concentrations of chemical, physical, biological, and other constituents.”
Failure to comply with permit limitations exposes permittees to civil penalties and criminal prosecution. Under what is known as the “permit shield” provision, however, an entity that adheres to the terms of its permit is deemed to be compliant with the act.
This case involves a challenge to “end-result” requirements — permit provisions that do not spell out what a permittee must do or refrain from doing but instead make a permittee responsible for the quality of the water in the body of water into which the permittee discharges pollutants.
The City of San Francisco operates two combined wastewater treatment facilities that process both wastewater and stormwater. During periods of heavy precipitation, the combination of wastewater and stormwater may exceed the facility’s capacity, and the result may be the discharge of untreated water, including raw sewage, into the Pacific Ocean or the San Francisco Bay.
In 1994, the EPA adopted its CSO Control Policy, which requires municipalities with combined systems to take prescribed measures and to develop and implement a Long-Term Control Plan. It also provides for a two-phase permitting process.
For many years, San Francisco’s NPDES permit for its Oceanside facility was renewed without controversy. But in 2019, the EPA issued a renewal permit that added two end-result requirements.
The first of these 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 argued that the end-result requirements exceed EPA’s statutory authority, but the 9th Circuit Court of Appeals denied the city’s petition for review. The court held that Section 1311(b)(1)(C) authorizes EPA to impose “any” limitations ensuring applicable water quality standards are satisfied in a receiving body of water.
The U.S. Supreme Court held that Section 1311(b)(1)(C) does not authorize the EPA to include “end-result” provisions in NPDES permits. Determining what steps a permittee must take to ensure that water quality standards are met is the EPA’s responsibility, and the court asserted Congress has given it the tools needed to make that determination.
The court noted Section 1311(b)(1)(C) does not authorize permit requirements conditioning compliance on receiving water quality. It asserted the provision’s text, structure and context support this interpretation.
The nation’s high court asserted that the pre-1972 Water Pollution Control Act contained a provision that allowed direct enforcement against a polluter if the quality of the water into which the polluter discharges pollutants failed to meet water quality standards. But it asserted Congress deliberately omitted such provisions when overhauling the law in 1972.
Instead, the Supreme Court noted the CWA imposes “direct restrictions” on polluters rather than working backward from pollution to assign responsibility. The court opined that the government’s interpretation would undo what Congress plainly sought to achieve when it scrapped the WPCA’s backward-looking approach.
The high court asserted the agency has adequate tools to obtain needed information from permittees without resorting to end-result requirements. It noted the EPA’s reliance on the Combined Sewer Overflow Policy is misplaced as that policy authorizes narrative limitations but not end-result requirements. The Supreme Court reasoned that concerns about disrupting general permits are unfounded given that narrative limitations remain available.
The appeals court ruling was reversed and the case was remanded.
Justice Samuel Alito delivered the opinion of the court, in which Chief Justice John Roberts and Justices Clarence Thomas and Brett Kavanaugh joined. Justice Neil Gorsuch joined as to all but Part II and Justices Sonia Sotomayor, Elena Kagan, Amy Coney Barrett and Ketanji Brown Jackson joined as to Part II.
Barrett filed an opinion dissenting in part, in which Sotomayor, Kagan and Jackson joined.
“The Environmental Protection Agency issued San Francisco a permit allowing it to discharge pollutants from its combined sewer system into the Pacific Ocean,” Barrett wrote for the dissenting justices. “The permit, of course, does not give the city free rein, and among its conditions are prohibitions on discharges that contribute to a violation of applicable water quality standards.”
The dissenting justices asserted the city of San Francisco’s challenge that the EPA doesn’t have statutory authority to impose such conditions is wrong.
“The relevant provision of the Clean Water Act directs EPA to impose ‘any more stringent limitation’ that is ‘necessary to meet … or required to implement any applicable water quality standard,’” Barrett wrote.
The dissenting justices wrote that the conditions that forbid the city to violate water quality standards are plainly “limitations” on the city’s license to discharge.
While the dissenting justices agreed with the portion of the majority opinion that rejects the city’s primary argument, they disagreed with the court’s analysis of the permit restrictions.
“In Part III, however, the Court embraces an equally weak theory — that the permit’s restrictions are not ‘limitations,’ as that word is ordinarily used,” Barrett wrote. “The Court’s analysis is contrary to the text, so I respectfully dissent in part.”