This article, written by attorneys Robert Lucic and Nicolas Harris, was originally published by the NH Bar News and can be found here. (p 27)
Just a year after its landmark decision in Sackett v. EPA, which limited the Environmental Protection Agency’s (EPA) authority to regulate waterways under the Clean Water Act (CWA), the US Supreme Court granted certiorari and heard oral arguments in, what is likely to result in yet another important decision, San Francisco v. EPA.
San Francisco v. EPA involves San Francisco’s combined sewer system, a common operation in many U.S. cities that channels both sewage and stormwater through a single network of pipes to a wastewater treatment facility. Heavy rainfall can overwhelm these systems, causing what experts call “Combined Sewer Overflows” (CSOs). This scenario occurs when the volume of water exceeds the capacity of the pipes or the treatment plant. As a result, untreated sewage and stormwater are discharged directly into nearby surface waters—in this case, the Pacific Ocean.
Under the CWA, CSOs are considered “point sources,” and, where such point sources discharge pollutants into a “Water of the United States,” operators are required to obtain a National Pollutant Discharge Elimination System (NPDES) permit. As the operator of the combined sewer system, San Francisco holds a NPDES permit.
At issue in San Francisco v. EPA is whether the EPA can impose “generic prohibitions” on NPDES permit holders like San Francisco. A generic prohibition allows the EPA to enforce water quality standards without having to identify specific effluent limitations for each discharge—a process which requires EPA to set limitations based on best available technology and economic feasibility.
The EPA or authorized states may issue NPDES permits. Most NPDES permits are issued by authorized states, like California, although New Hampshire is among a handful of jurisdictions that do not issue such permits. The CWA generally requires the permit issuer to set exact pollutant limits, known as “effluent limitations,” for each NPDES permit holder. Effluent limits are set considering available technology known as, technology-based effluent limits, which are protective of the water quality standards of the receiving waters. This process has allowed EPA and the states to take a preventative approach to water regulation as opposed to the retrospective strategy, which proved untenable for much of the early to mid-twentieth century.
In San Francisco, it seems EPA now wants to take a different approach, arguing that the CWA, specifically Section 33 U.S.C. 1311 (b)(1)(C), allows EPA to regulate point source dischargers through effluent limitations or generic prohibitions. The language in this Section states “…there shall be achieved…not later than July 1, 1977, any more stringent limitation, including those necessary to meet water quality standards . . . or required to implement any applicable water quality standard.” EPA argues that “any more stringent limitation” means it can administer a generic prohibition on point source dischargers when an effluent limitation is not possible.
Accounting for each pollutant and nutrient entering a CSO requires technical and scientific precision making the generation of an accurate yet feasible effluent limitation difficult. Because of this complexity and uncertainty, EPA reads 1311(b)(1)(C) as a backstop to effluent limitations.
San Francisco disagrees. In an exercise of statutory interpretation, San Francisco argues that the language of “any more stringent limitation” references an effluent limitation—not a generic prohibition. Petitioners characterize “more stringent” in 1311(b)(1)(C) as a comparative adjective that refers to something previously mentioned, like “effluent limitations,” discussed earlier in Sections 1311(b)(1)(A) and 1311(b)(1)(B). They further support this conclusion by referencing other places in the Act where the word “limitation” is often used as shorthand for “effluent limitation.”
On October 16, the Supreme Court heard oral arguments in this matter. Justice Kagan pressed the City’s interpretation, wondering how it reads the word “effluent” into 1311(b)(1)(C) where it is nowhere to be found. She suggested that Congress intentionally omitted the term “effluent,” implying that 1311(b)(1)(C) might allow for a broader category of limitations beyond just specific effluent limitations. Her point: if the statute had intended effluent-specific limits be the end all of EPA’s power, why is there a catch-all provision at the end of the statute?
Justice Kagan supported this by observing that the CWA contains both technology-based requirements (effluent limitations) and water quality standards, suggesting that Congress recognized technology alone might not always be enough to protect water quality. Justice Jackson emphasized this point, suggesting Congress likely intended to give EPA flexibility to enforce standards that extend beyond effluent-specific controls.
Justice Kavanaugh, however, was skeptical. One of his main concerns stemmed from the financial penalties and potential prison time that could be levied against point source dischargers for failure to comply with a generic prohibition. He agreed that water quality standards were the goal but considered whether statutory means to achieve that goal should only be pursued through numeric or more specific narrative effluent limitations—something that the City agreed with.
Justice Gorsuch’s questioning might have exposed how the Court will ultimately hold in this case. Gorsuch first clarified that the City’s primary argument was that 1311(b)(1)(C) should be understood to require only “effluent limitations” in permits. The City concurred. But then he questioned the City on what would happen if, perhaps, the Court agreed with EPA, Justice Kagan, and Justice Jackson that Congress did intentionally leave out the word “effluent” in 1311(b)(1)(C)? The City maintained that even if the Court did not read “effluent limitation” into the statute, at a minimum, the restrictions should still be discharge-based, keeping with consistency and the statutory language of Section 1311.
In the end, the Court is likely to tighten the backstop policy. The extent of the limitations, however, remains uncertain, but if the current trend of Supreme Court administrative law decisions continues—and there is no reason to think otherwise—EPA’s authority to issue generic prohibitions will at least be limited, if not altogether eliminated. Given that it is unlikely that EPA will be given additional resources in the near future, the burden will fall on the states to develop more robust discharge-based limitations in permits going forward.