High Court to Take First Post-Chevron Look at Clean Water Act

The US Supreme Court will hear oral arguments Wednesday in a case with high stakes for the Clean Water Act as environmentalists warn the justices may be poised to weaken the law.

Environmental attorneys say they’ll be watching the justices’ approach to the case in the wake of its June Loper Bright Enterprises v. Raimondo ruling, which cast aside the Chevron doctrine that provided for deference to federal agencies’ interpretation of federal law and regulations.

The case is among the high court’s first opportunities to weigh in on federal environmental regulations in a post-Chevron world, said Brian Bell, a partner at Dorsey & Whitney LLP in Minneapolis.

The central question in City and County of San Francisco v. EPA is whether the agency can require wastewater systems to comply with nonspecific, or “narrative,” effluent limitations set in National Pollutant Discharge Elimination System (NPDES) permits that may speak to aesthetic qualities of water the EPA may want to maintain.

Peter Tomasi, a partner at Foley & Lardner LLP in Milwaukee, said the case can be distilled down to a simple question: “How specific do regulators have to be when they prepare a permit?”

“It’s really a question of who’s the burden on in terms of determining how to meet these narrative water quality standards,” he said. “Does the permit applicant have to bear the burden of figuring out what do these narrative standards mean?”

The EPA claims that vague pollution limits are both necessary and fully authorized under the Clean Water Act to keep cities and property owners with water pollution discharge permits from contaminating waterways more than they’re allowed to.

San Francisco’s Board of Supervisors on Oct. 8 approved a nonbinding resolution urging the city attorney’s office to drop the lawsuit, but oral arguments remain on schedule. The city attorney’s office did not respond to a request for comment.

Need for Specificity

San Francisco claims that its NPDES permits for discharges into the Pacific Ocean don’t tell the city specifically what it needs to do to control pollution from sewage overflows. The US Court of Appeals for the Ninth Circuit in July 2023 upheld EPA’s authority to issue generic limits, or “general narrative prohibitions,” on discharges under the Clean Water Act.

The city claims that if the Supreme Court doesn’t require the EPA to set specific pollution limits, the agency can enforce NPDES permits without defining what constitutes too much pollution.

Dave Owen, an environmental law professor at the University of California College of the Law in San Francisco, said he thinks a majority of justices will be sympathetic to the city’s argument in part because the language in the law is broadly written and seems to create open-ended obligations.

“At oral argument, the justices may be searching for a principled way to say what counts as too vague,” Owen said. “That question presumes that the Court will be ready to engage with the nuances of the statutory scheme, and I’ll also be listening to see if that really happens.”

Tomasi said he’ll be watching Justice Brett Kavanaugh, who does not always vote along ideological lines in environmental cases and dissented in the court’s 2023 Sackett v. EPA ruling, which limited federal wetlands jurisdiction under the Clean Water Act.

Bell said the Clean Water Act is ambiguous enough that prior to Loper Bright, the court may have deferred to the EPA’s decision on narrative prohibitions. He said he’ll be watching to see how deeply the justices do their own examination of the statutory terms to see if they can resolve the ambiguity without any deference to agency guidance.

He’ll also be watching whether some of the more conservative justices seem interested in using the case to further hamstring EPA Clean Water Act regulations by taking a “meat cleaver” approach to the agency’s enforcement efforts, Bell said.

Defying Political Alignments

Tomasi said the case is really about what constitutes good public policy, but isn’t political.

The case has defied usual political alignments, pitting San Francisco against the state of California, which has filed briefs supporting the EPA. The National Mining Association and other industry trade groups filed a brief supporting San Francisco, which has also received support from other major cities including New York City, Boston, and Washington, D.C, in a brief filed in July.

“Generic prohibitions leave permittees guessing about whether compliance with all other permit terms—which include numerous detailed obligations that are often the product of a multi-year permitting proceeding—is somehow not enough to constitute compliance with the CWA,” the cities argued in their brief.

San Francisco activists say the city’s lawsuit is seeking the court’s permission to pollute.

“We have the opportunity to come to the table and find a compromise, but unfortunately some of my colleagues would rather stand with the biggest polluters in the United States,” San Francisco’s District 7 Supervisor Myrna Melgar said in a Sierra Club statement.

The Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

The San Francisco City Attorney’s Office and Beveridge & Diamond PC represent the city.

The case is City and County of San Francisco v. EPA, U.S., No. 23-753, oral argument scheduled 10/16/24