Supreme Court Sides With San Francisco Against EPA in Sewage Lawsuit

Updated 2:58 p.m. Tuesday

The U.S. Supreme Court on Tuesday morning sided with San Francisco and its unusual alliance of oil companies and business groups in a case it brought against the federal Environmental Protection Agency over the city’s raw sewage.

Environmentalists have raised concerns that the court’s conservative majority could use the case to roll back clean water protections on a national scale. The city, meanwhile, argued it was only seeking clarity on permit limitations and believed it was being held responsible for more than its share of water pollution.

San Francisco filed its lawsuit challenging the EPA’s discharge regulations as too vague after the federal agency and the California State Water Resources Control Board lodged a civil complaint in federal court against the city in May. The agencies’ complaint alleged numerous Clean Water Act violations over the last decade as the city repeatedly spilled raw sewage onto streets and beaches during big storms.

San Francisco faced the prospect of spending billions to upgrade its infrastructure to get into compliance with the Clean Water Act, a project it said was too expensive.

In its 5–4 opinion, the Supreme Court’s conservative majority said that the EPA does not have the authority to require these kinds of sewage system upgrades and that the city is only responsible for what it discharges — not the water quality’s “end result.”

“The agency has adequate tools to obtain needed information from permittees without resorting to end-result requirements,” the opinion said. “Its reliance on the Combined Sewer Overflow Policy is misplaced as that policy authorizes narrative limitations but not end-result requirements.”

In a joint statement, City Attorney David Chiu and San Francisco Public Utilities Commission General Manager Dennis Herrera said they were pleased with the court’s narrow decision.

“This ruling makes clear that permitholders like San Francisco are responsible for what they discharge, and the EPA has the tools at its disposal to ensure water quality,” they said. “But it’s not lawful to punish permitholders for things outside of their control, such as the end-result water quality of a shared body of water, where many other factors affect water quality.”

The EPA said in an email that it is “reviewing the decision.”

San Francisco’s legal case was “very well designed to play on the sympathies of a very conservative Supreme Court,” said Dave Owen, a professor at UC Law San Francisco, who added that he was not surprised by the court’s decision.

But at the end of the day, Owen said, San Francisco’s sewer still overflows, and the city is required under the Clean Water Act to address those problems. The city runs stormwater and sewage through the same pipes, which are prone to overflows during heavy storms.

San Francisco discharges an average of nearly 2 billion gallons of combined stormwater and raw sewage each year into Mission Creek and other points around the shoreline.

“None of that changes,” he said. “The city’s obligations and its costs really aren’t going to shift very much.”

He added that the city might have shot itself in the foot because the EPA could be forced to enforce more restrictive regulations.

“It’s very possible that San Francisco comes out of this litigation in the long run with more burdensome and less effective permit terms that cost just as much, if not significantly more, to deal with,” he said. “It’s not in the interest of a city that is surrounded by water to undermine the Clean Water Act.”

Environmental advocates had accused the city of trying to dismantle the Clean Water Act and encouraged San Francisco to drop its lawsuit. They argued it would stain the city’s reputation as a protector of the public and environment and affect federal regulators’ ability to implement the Clean Water Act.

Sanjay Narayan, chief appellate counsel of the Sierra Club’s Environmental Law Program, said in a statement that the court’s decision “ignores the basic reality of how water bodies and water pollution works.”

“The result is likely to be a new system where the public is regularly subjected to unsafe water quality,” Narayan said.

Deborah Sivas, a professor of environmental law at Stanford Law School, reviewed the court’s opinion and said she doesn’t think it “is one bit helpful for solving the problem.”

Sivas believes the decision could ultimately have far-reaching consequences for cities with combined sewer systems across the country — and potentially those without. It could ultimately also affect agricultural runoff permits, she said.

“All those permits, in my mind, are now in jeopardy because they all have that backstop in there,” she said.

She questioned San Francisco’s motive behind the lawsuit, saying the court’s decision could actually lead to a worse situation for the city.

“I think it’s going to be a big challenge for everyone to figure this out,” she said. “The real issue here is that it’s so expensive for San Francisco to rebuild its system.”

Eric Buescher, managing attorney for SF Baykeeper, said he is still evaluating the court’s decision but thinks it could either lead to “more polluted waters” or result in narrow, restrictive limits on how San Francisco can clean up its pollution issues.

“I don’t think that’s good for the regulated industry at the end of the day to have those more heavy-handed restrictions imposed,” he said. “I’m skeptical that’s going to work.”

SF Baykeeper is a local environmental group and is part of the EPA and California water board’s lawsuit against San Francisco over the discharges.

Sean Bothwell, executive director of the California Coastkeeper Alliance, said in a statement that regulators must follow up with specific, enforceable permit terms to ensure water quality standards are met. For decades, he said, water dischargers like San Francisco have had the “freedom to decide how to meet water quality standards, and now the Supreme Court has put an end to that practice.”

“The regulated community should reap what they sowed,” he said. “You cannot beg regulators for flexibility to avoid enforcement and then ask the Supreme Court to strike down vague permit standards. It is time California hold polluters to specific water quality standards.”