Earlier this week, the Supreme Court decided yet another case making it harder to protect the environment, siding with the city of San Francisco in its challenge to limitations on dumping sewage in public water. For the last five years, the city’s failure to comply with Environmental Protection Agency regulations has resulted in billions of gallons of sewage flowing across beaches, into the Pacific Ocean, and sometimes even through streets and into homes. The Court’s decision in San Francisco v. EPA curtails the agency’s power to set those regulations in the first place. More sewage will enter more homes around the country as a result.
The Clean Water Act, which Congress enacted in 1972, makes it unlawful to discharge pollutants into covered bodies of water unless authorized by a permit. These permits, issued by the Environmental Protection Agency, set limits on when and how cities and corporations can release pollutants so that they don’t threaten human or aquatic life. The CWA requires that permits include “effluent limitations” specifying the amounts of pollutants that can be discharged, as well as “any more stringent limitation” needed to meet or implement standards. This is a fancy way of saying that limitations are both quantitative and qualitative, ranging from specific rules like “monthly discharge of oil can’t exceed 25 milligrams per liter” to qualitative guidance like “follow best practices to reduce pollution.”
This case is about the Oceanside wastewater treatment facility, which processes both stormwater and water from the city’s 250 miles of sewers. Like many older municipal systems, during periods of heavy rain, Oceanside sometimes empties raw sewage into the Pacific Ocean. So when the EPA renewed Oceanside’s permit in 2019, it added two requirements: one that prohibited Oceanside from making discharges that “contribute to a violation of any applicable water quality standard,” and another more generally barring it from making discharges that “create pollution, contamination, or nuisance” under state law.
The EPA argued that these conditions created an important backstop in cases where compliance with effluent limitations alone isn’t enough to maintain water quality; with the updated requirements, the EPA could give the city some flexibility, rather than delay issuing a permit or denying it outright. But San Francisco complained that the requirements were too generic; unless the EPA provided specific numerical limits, San Francisco contended it was basically just being told not to pollute too much.
The Court framed San Francisco’s problem a bit differently: While San Francisco’s question was about the specificity of the standard, the Court’s question was about identifying the specific actions necessary to meet that standard. “This case involves provisions that do not spell out what a permittee must do or refrain from doing,” Justice Samuel Alito wrote for the five-justice majority. The Court said that “determining what steps a permittee must take to ensure that water quality standards are met is the EPA’s responsibility,” and that permit provisions linked to water quality—“end-result requirements,” Alito called them—thus exceed the EPA’s authority. Put another way, you can lead a horse to water, and you have to make it drink by telling it exactly how to do so. Also, the water has shit in it.
To justify this conclusion, the Court dissects the statutory text until there’s nothing left. Alito explained that the CWA requires permits to contain “any more stringent limitation” that is “necessary to meet” certain “water quality standards,” as well as “any more stringent limitation” that is “required to implement any applicable water quality standard.” According to Alito, the italicized terms suggest the statute allows the EPA “to set rules that a permittee must follow in order to achieve a desired result, namely, a certain degree of water quality.” But also, Alito says, EPA requirements that instructed permittees to adhere to water quality standards set forth in another law weren’t real rules at all.
(Photo by Alex Wong/Getty Images)
Reaching this conclusion required several feats of analytical acrobatics. First, Alito defined a “limitation” as a “restriction or restraint imposed from without.” But, he said, “when a provision simply tells a permittee that a particular end result must be achieved,” the permittee “imposes” a plan to achieve that goal “on itself,” which means the restriction “comes from within.” By this logic, the EPA’s requirement isn’t really a “limitation,” and is therefore illegal.
Second, Alito defined “implementation” as actions designed to “give practical effect to and ensure actual fulfillment by concrete measures.” And if you look at it that way, “simply telling a permittee to ensure that the end result is reached is not a concrete plan,” since it “states the desired result” but “does not implement that result.” Apparently, the EPA needed to hold San Francisco’s hand and direct the city step-by-step in order to get it to “implement” anything.
Finally, Alito zooms in on the word “meet,” which he said means “to comply with; fulfill; satisfy” or “to come into conformity with.” Thus, he concluded, the word “limitation” is “most naturally understood” to mean something that “sets out actions that must be taken to achieve the objective.” Because the EPA restrictions were insufficiently particular, he concluded, they must be against the law.
Justice Amy Coney Barrett dissented along with the three liberal justices, almost in awe of the Court’s “puzzling” reliance on “a theory largely of its own making.” Barrett’s dissent suggests she might have been amenable to an argument that the limitations were vague or unreasonable, but could not go along with Alito’s insistence that the requirements weren’t “limitations” at all. “The Court offers nothing to substantiate this proposition, and it is wrong as a matter of ordinary English,” she said. “Conditions that forbid the city to violate water quality standards are plainly limitations on the city’s license to discharge.”
For an extra sprinkling of intellectual dishonesty, Barrett pointed out that Alito’s parsing of the statute cited a dictionary and then deliberately left out part of the definition that cut against him. The Court’s narrow interpretation of “implement”—giving practical effect through concrete measures—is “true but incomplete,” said Barrett, since the definition also includes “to give practical effect to and ensure actual fulfillment by concrete measures.” Although the word “is often used in the sense of taking concrete measures, such measures are not necessary to satisfy the definition,” she wrote.
San Francisco v. EPA relies on dishonesty and mischaracterizations in order to further the economic interests of polluters and restrict the government from doing anything about it. As a result, more bodies of water will be as full of shit as the Supreme Court.
