In a 5-4 decision, the Supreme Court ruled on Tuesday that the Environmental Protection Agency overstepped its statutory authority in its regulation of San Francisco’s discharge of pollutants into the Pacific Ocean and San Francisco Bay. Conservative Justice Amy Coney Barrett joined the three liberal Justices in dissenting to a ruling that will make it much harder for the EPA to, uh, protect the environment.
San Francisco found itself on the side of the American Petroleum Institute, the National Mining Association, and other clean living juggernauts, which one would hope would lead ostensibly liberal cities to reconsider their position. The majority decision, written by Justice Samuel Alito, contends that the generic conditions imposed by the EPA in a 2019 permit were too vague to follow and could lead to “crushing penalties” if water quality standards are breached — which they were, meaning the combined sewage and stormwater system sometimes expelled human waste into waterways and the ocean.
As Barrett’s dissent discusses, the other conservative Justices’ ruling seems to hinge on an interpretation of the word “limitation.” Basically, the city rejected the parts of its permit that lack detail on those limitations but holds the city officials responsible for the violation “of any applicable water quality standard.” In other words, they want to be told exactly how much poop water they can discharge, not just be told to avoid dropping below a poop water threshold. (Yes there are other pollutants involved. No there isn’t a better visual to discuss this with.)
“The city’s plan [to avoid breaching those thresholds], the Court asserts, is a ‘limitation’ on its discharges, but the permit condition is not,” Barrett wrote. “The Court offers nothing to substantiate this proposition, and it is wrong as a matter of ordinary English.” Limitations often mean “don’t exceed X” without instructions on what to do up to that point or how to avoid exceeding it. “An airline could impose a ‘limitation’ on the weight of checked bags, even though it does not tell passengers what items to pack.”
The end result here is that coastal cities with EPA permits to discharge pollutants into oceans suddenly will have a lot more leeway to discharge more of it, or avoid paying for expensive upgrades to sewer and outflow systems.
“SCOTUS’s decision ignores the basic reality of how water bodies and water pollution works, and could stymie the ability of the EPA to implement the Clean Water Act, a bedrock environmental law that has kept water safe for the last 50 years,” said Sanjay Narayan, the chief appellate counsel of the non-profit Sierra Club’s Environmental Law Program, in a statement. “The result is likely to be a new system where the public is regularly subjected to unsafe water quality.”
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