San Francisco water discharge dispute debated at U.S. Supreme Court

The question of where and how San Francisco should measure its stormwater discharge was debated in the U.S. Supreme Court on Wednesday.

The case has sparked a fear among environmental groups, as well as the state of California and the San Francisco Board of Supervisors, that the Supreme Court, which leans conservative, might use this case to loosen regulatory powers nationwide.

The case is based on a dispute over San Francisco's oceanside combined stormwater and wastewater discharge permit. In San Francisco, and in many cities around the country, heavy rain pushes stormwater and wastewater systems beyond capacity, and they end up mixing in their rush to the sea.

"There's two ways that you can regulate, or think about protecting water quality," said managing attorney Eric Buescher from San Francisco Baykeeper, an environmental watchdog nonprofit. "One is to limit the pollutants that come out of a pipe from a city or an industrial facility. One is to address how much pollutants are in the water that that pipe goes into."

Buescher said the protections for the Pacific Ocean, San Francisco Bay, creeks and rivers are based on what are called water quality standards. He said San Francisco is arguing that the EPA cannot regulate its conduct based on water quality standards and can only be regulated based on what comes out of the pipe.

"If the court adopts that kind of an approach, that would weaken the ability of EPA and more importantly, state and local regulators throughout the country, to protect communities and water bodies from complex sources of pollution," he said.

The federal Clean Water Act includes both water quality standards and effluent permits, which allow cities to discharge a limited number and kinds of pollutants into public waters.

"For 50 years around the country, that's how EPA and state regulators have interpreted the law," said Buescher. "If you violate water quality standards, that's inconsistent with a permit."

Last week, the San Francisco Board of Supervisors passed a resolution urging San Francisco City Attorney David Chiu to drop the case against the EPA, but he declined to do.

In a public memo, Chiu said the lawsuit is narrowly focused on vague language and does not broadly challenge the Clean Water Act. He said that San Francisco would be legally responsible for the quality of the Pacific Ocean and Bay as a whole, and compliance would cost the city billions.

At Wednesday's hearing, Frederick Liu of the U.S. Department of Justice argued on behalf of the EPA, hoping the court would stay the particular concerns in the case and not throw out the whole set of these types of general water quality limitations.

The conservative justices seemed to lean with the arguments made by San Francisco. Justice Neil Gorsuch questioned the water quality standard.

"It has to be some restriction on discharge, some limitation on what they do, rather than just creating a circle," said Gorsuch. "But when you just say: Go forth and do good -- is that a limitation on what they do, on what they discharge, in any meaningful sense, or is that the water quality standard itself? "

"A lot of these water quality standards are not independently enforceable," said Liu in response. "The only way these standards are applied to a discharger like San Francisco is if we incorporate those standards in a limitation."

Liu added that the EPA needs both types of regulations to bridge the gap between limits on specific types of pollutants coming from the pipe and regulations on the water quality around the pipe.

San Francisco and the EPA have been arguing about the permit for more than a decade. The city first objected in 2019 to the new language in the 2013 permit updates. Its objections were overruled by the San Francisco Bay Regional Water Quality Control Board and the EPA Environmental Appeals Board, an impartial tribunal set up by the EPA that hears appeals of major statutes the agency administers.

Environmental groups are concerned that San Francisco's lawsuit is publicly supported by industrial groups like the National Mining Association, American Petroleum Institute and the American Chemistry Council.

The Sierra Club environmental group's chief appellate counsel Sanjay Narayan said in a statement that recent court decisions have already hurt environmental regulations.

"This Supreme Court has already sharply limited the reach of the Clean Water Act, constrained EPA's ability to address climate pollutants under the Clean Air Act, and limited agencies' ability to sensibly implement statutes protecting the public by eliminating Chevron deference," Narayan said.

The Chevron doctrine stated that if federal legislation is ambiguous or leaves an administrative gap, the courts must defer to the regulatory agency's interpretation. It was overturned in June. The justices decided that courts would make regulatory decisions.

A ruling on the San Francisco case is due by June 2025.