Just over three months ago, the Supreme Court ended its 2023-24 term by dealing a crushing blow to the administrative state, issuing a series of rulings that will drastically impede the federal government’s ability to make people’s lives better. As of last week, the justices are back to work for another nine months of service to the Federalist Society’s agenda. This Wednesday, they’ll hear oral argument in San Francisco v. EPA, a challenge to the power of democratically accountable agency experts attempting to fulfill the EPA’s mission of protecting human health and the environment.
The basic dispute in San Francisco v. EPA arises from the question of how much junk can be legally dumped into waters protected by the Clean Water Act, which Congress passed in 1972. Most of the time, the answer is none, but there are exceptions: The law empowers the Environmental Protection Agency to issue permits via the National Pollutant Discharge Elimination System (NPDES), which allows certain cities or businesses to discharge some amount of pollutants into specified bodies of water, under such conditions as the EPA sets forth.
The city of San Francisco is one such entity that occasionally needs to dump pollutants into the water. In fact, it dumps a significant volume already: on average, 1.8 billion gallons of sewage every year. Its Oceanside Water Pollution Control Plant is one of several sites responsible for the discharge of these pollutants into public waters. Oceanside handles both wastewater and stormwater, and during heavy rain, the system can overflow. By design, in those instances, both wastewater and stormwater can be emitted from the system into both the San Francisco Bay and the Pacific Ocean.
In order to operate this system, the city is required to maintain an NPDES permit, which is issued by the EPA in conjunction with the state of California. And in order to receive this permit, San Francisco must comply with a state regulatory scheme designed to ensure that the water into which the pollutants are discharged is still clean enough to preserve shellfish harvesting and maintain the marine habitat.
The regulatory scheme does not issue a numerical limit on the pollutants that San Francisco may discharge; instead, following long-standing practice, the permit requires that the city “avoid any discharge that causes or contributes to a violation of water quality standards.” This flexibility accounts for the fact that in a watershed as sprawling as the Bay Area, there are multiple sources that will contribute to water quality at any given moment, and it would thus be impractical to permit indefinitely a fixed amount of pollution from a given source.
Essentially, the terms of this permit (and others like it) mean that the city can pollute the water a bit, but not so badly that it does irrevocable harm to the planet—or that the water, say, catches on fire, as it did in the days before the Clean Water Act. This framework is not new; the EPA has issued permits in this manner for decades, and at sites scattered across the country.
In 2019, however, when San Francisco’s permit was up for renewal, the city argued that it was too vague—that the permit needed to set quantitative, rather than qualitative, limits on pollution levels. But the EPA and the state rejected the city’s argument. When the city brought the matter to the EPA’s Environmental Appeals Board, the result was the same: The board agreed that the Clean Water Act authorized the limitations as defined in the permit.
In a functioning democracy, this would be a relatively mundane recounting of how government is supposed to work. Congress passed legislation to protect the environment; it gave a federal agency and its state partners the authority to issue permits to ensure compliance with said legislation; and the agency used its expertise to do exactly that. Democratically elected members of Congress and democratically accountable agency actors worked together to ensure that the city of San Francisco, in operating its water management system, would not do so in a way that would cause unacceptable levels of harm to the Pacific Ocean.
Because we are living in the world Leonard Leo built, however, San Francisco—with the support of the U.S. Chamber of Commerce, the National Mining Association, and other pro-business entities—has taken this case to the Supreme Court. (Ironically, among the lawyers working to help San Francisco undermine the Clean Water Act is John Cruden, who served as the Assistant Attorney General for the Department of Justice’s Environment and Natural Resources Division under Barack Obama.)
Ostensibly, the city is asking the Court to force the EPA to issue a quantitative limit on the permit’s pollution levels. The reality, however, is that such a fixed limit would be difficult or impossible for the agency to set; a requirement that it do so could thus dramatically impact its ability to enforce the Clean Water Act. “It is rarely possible to translate every aspect of every applicable water quality standard into detailed [quantitative] limitations for each discharger,” the state of California wrote in its amicus brief on behalf of the EPA. If the Court adopts San Francisco’s position, the state continued, it would “eliminate an important regulatory tool that allows permitting authorities to carry out the intent of Congress.”
San Francisco didn’t like the outcome it got when it went through the agency’s process; that’s occasionally going to happen when entities that want to pollute run up against the Clean Water Act. Instead of accepting it, the city is following the well-trodden path of far-right and pro-corporate interests by turning to the Supreme Court, which has appointed itself the ultimate policymaking body in the United States. The bet the city seems to be making is that this particular Court, with its history of undermining the ability of federal agencies to do their jobs. will be happy to undercut the EPA’s ability to keep people safe, not only in California but throughout the country.
As recent history makes clear, regardless of the result here, the justices will continue to have opportunities to substitute their judgment for that of democratically accountable experts—with science, democracy, and the future of our planet all paying the price.
