The Supreme Court sided with San Francisco on Tuesday in a challenge to water quality regulations issued by the Environmental Protection Agency in a ruling that could have sweeping implications for the agency’s ability to limit offshore pollution.
The 5-to-4 decision dealt another blow to the agency, which has recently sustained several losses before the court over its efforts to protect the environment.
The case was notable because it created unusual alliances. Liberal San Francisco found itself on the same side as mining and petroleum trade groups like the National Mining Association, American Farm Bureau Federation, and American Fuel and Petrochemical Manufacturers in opposing the E.P.A.
The dispute fundamentally focused on human waste and how San Francisco disposes of it. The question before the court was whether the Clean Water Act of 1972 allowed the E.P.A. to impose prohibitions on wastewater released into the Pacific Ocean and to penalize the city for violating them.
Justice Samuel A. Alito Jr., writing for the majority, said the E.P.A. was entitled to impose specific requirements to prevent pollution but not to make polluters responsible whenever water quality generally falls below the agency’s standards.
“When a permit contains such requirements,” he wrote, “a permittee that punctiliously follows every specific requirement in its permit may nevertheless face crushing penalties if the quality of the water in its receiving waters falls below the applicable standards.”
Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Brett M. Kavanaugh joined the majority opinion, and Justice Neil M. Gorsuch joined most of it.
Justice Amy Coney Barrett dissented, joined by the court’s three-member liberal wing — Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson.
Justice Barrett said the agency was entitled to supplement specific requirements for water discharge with more general standards based on changes to water quality. The need for the second kind of regulation, she wrote, quoting from the government’s lawsuit, “is on display in this case — discharges from components of San Francisco’s sewer system have allegedly led to serious breaches of the water quality standards, such as ‘discoloration, scum and floating material, including toilet paper, in Mission Creek.’”
Justice Barrett added that polluters can file targeted challenges to rules if they believe them to be unfair. But “a statutory rewrite” was not warranted, she wrote.
In the lead-up to the October oral argument, San Francisco officials had pushed back on the notion that they were challenging the federal government’s ability to regulate the environment. They said they just wanted clarity on the rule for the city’s wastewater permit so that the city could ensure it complied with the Clean Water Act, they said.
The lawyer for San Francisco had argued that city officials did not have clear guidance on how to comply with the Clean Water Act and had been “exposed to crushing criminal and civil penalties even when it otherwise complies with its 300-page permit.”
