San Francisco vs. the Biden EPA

The city of good liberals asks the Supreme Court for regulatory relief

WSJ editorial. 

"Well, well. Look who’s asking the Supreme Court for help against overreaching regulators. On Wednesday the Justices will consider whether the Environmental Protection Agency can punish the city of San Francisco for dirty water in the Pacific Ocean.

City and County of San Francisco v. EPAinvolves a permitting scheme under the 1972 Clean Water Act. The law requires localities and businesses to obtain permits to discharge pollutants into waterways.

San Francisco operates a sewage and stormwater treatment system that experiences overflows during heavy storms, resulting in effluent discharges into the Pacific. The EPA in 2019 imposed conditions on its permits that hold the city’s system responsible if its discharges “cause or contribute” to water in the Pacific that violates federal and state standards.

EPA and the environmental group San Francisco Baykeeper then sued San Francisco for sewage discharges since 2013 that they say contributed to dirty water in the Pacific. Each permit violation is punishable with fines of more than $66,000 a day. San Francisco’s potential liability runs into the hundreds of millions.

San Francisco says it’s unfair to hold it responsible for the ocean pollution since there are hundreds of other culprits. The city adds that the Clean Water Act lets EPA specify limits only on discharges or technology to control pollution from so-called point sources.

EPA’s generic permit conditions makes compliance with the law “elusive, because a waterbody’s ability to meet water quality standards at any time depends on pollutants that all sources—not just San Francisco—contribute,” San Francisco says in its brief. “The City consequently lacks advanced notice of how much it must control its discharges.”

While seeking enormous penalties, EPA is leaving the city “in the dark about what it allegedly did wrong,” San Francisco says. In short, EPA has set a moving target that the city has no way of meeting, short of shutting down its sewage system.

EPA cites language in the Clean Water Act that lets it impose permit conditions that set “effluent limitations” and “any more stringent limitation, including those necessary to meet water quality standards.” But San Francisco says such unbridled regulatory authority conflicts “with the text, structure, and historical context” of the Clean Water Act.

That law’s predecessor, the Federal Water Pollution Control Act, notably applied the same permitting approach as the EPA is trying to apply now. This resulted in endless litigation that failed to improve water quality. Congress repealed the law and replaced it with the Clean Water Act’s permitting scheme that directs the EPA to set specific limits on discharges.

Citing the Court’s landmark Loper Bright Enterprises decision last term, San Francisco parses the text of the Clean Water Act to rebut the EPA. Sundry industry groups warn in friend-of-the-court briefs supporting San Francisco that letting the EPA’s expansive interpretation prevail would create enormous uncertainty that harms business.

You have to smile at San Francisco’s good liberals howling about regulators and invoking the Loper Bright opinion that most of them derided. Maybe they’ll tell the Senate Democrats who want to end independent judicial review."