With its opinion in San Francisco v. EPA, the U.S. Supreme Court has again acted to "right" the implementation of the federal Clean Water Act by overturning a U.S. Court of Appeals for the Ninth Circuit interpretation of the Act for the third time in less than five years.
No other federal law has attracted more attention from the nation's highest court over this brief span of time. The Court's holding will dramatically change the way discharges of "pollutants" to Waters of the United States are regulated from coast to coast.
Five justices agreed that certain narrative permit conditions in many Clean Water Act discharge permits were not authorized by Congress. These conditions prohibiting discharges that "contribute" to the exceedance of a state water quality standard or "create pollution, contamination or nuisance" are now invalid.
The majority opinion was written by Justice Samuel Alito, who, two years ago in Sackett v. EPA, authored the opinion of the Court reversing the Ninth Circuit's conclusion that the Clean Water Act covered wetlands with an "ecologically significant nexus to traditional navigable waters." The Sackett majority held that the Ninth Circuit's determination of the reach of the Act was "hopelessly indeterminate."
Based on the Court's opinion in Sackett, when the City of San Francisco sought the Supreme Court's intervention, it was opined that EPA should consider it a victory if the Court upheld its ability to set and enforce permit limitations that weren't effluent limitations but were more specific than the "hopelessly indeterminate" "end result" prohibitions imposed on San Francisco.
San Francisco and others went a step farther in arguing that Section 1311(b)(1)(C) of the Clean Water Act authorizes only effluent limitations.
Surprisingly, eight of the nine justices rejected this suggestion, and EPA's and the states' ability to set and enforce limitations that aren't numerical has been preserved. But, to quote the Court's majority opinion, such limitations must "set[ ] out actions that must be taken to achieve the objective."
The opinion of the Court in San Francisco, like the opinion of the Court in Sackett, was heavily influenced by the majority's continuing due process concerns about the potential enforcement of the Clean Water Act, including the potential for astronomical penalties for violating the indeterminate "end result" prohibitions at issue.
The four dissenting justices, led by Justice Amy Coney Barrett, would have addressed such concerns on a case-by-case basis.
The five justices in the majority are clearly not among those who, at oral argument, Justice Elena Kagan suggested "like less prescriptive standards" similar to the "end result" prohibitions the Court invalidated.
Justice Alito alluded to the fact that the City and County of San Francisco were joined in their appeal by dozens of industry groups and municipal authorities.
The briefs supporting EPA's "less prescriptive standards" came from non-governmental organizations (NGOs), most of which are in the citizen suit business, and a smattering of state attorneys general.
So, What's Next?
It is clearly up to EPA and the states to identify the technology and water quality standards to be met by any permittee, as well as the permit conditions necessary for any discharge permit to meet those standards. EPA's NPDES Permit Writers' Manual is consistent with the Court's opinion on this point.
What is far less clear is whether and when EPA will have the resources to do that which the Supreme Court and its own guidance say, to quote Justice Alito, "the CWA demands."
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