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A recent ruling by a narrowly divided Supreme Court has imposed additional challenges for environmental regulators aiming to curtail water pollution. This decision arose from a case in San Francisco concerning incidents where raw sewage is occasionally released into waterways during periods of heavy rainfall.
In a 5-4 vote, the court’s conservative majority determined that the Environmental Protection Agency (EPA) had exceeded its authority under the Clean Water Act. It found that the permits issued by the EPA for controlling water pollution included vague criteria that compromised their effectiveness in ensuring water quality.
This ruling signifies a continuation of recent trends wherein conservative justices have sought to limit the scope of pollution control regulations. Justice Samuel Alito, who authored the majority opinion, conveyed that while the EPA is permitted to set specific thresholds governing what cities and counties may discharge, it does not possess the jurisdiction to impose “end-result” mandates that require these entities to sustain a certain level of quality in receiving bodies of water, such as the Pacific Ocean in this case.
Alito articulated concerns regarding the potential for excessive penalties against permit holders, stating that adherence to specified requirements does not protect them from penalties should the water quality of the receiving waters fail to meet established standards.
In a rare dissent, Justice Amy Coney Barrett sided with the court’s three liberal justices, arguing that limitations on discharges do not necessarily guarantee compliance with water quality standards. She noted that improper discharges from elements of San Francisco’s sewer system have reportedly resulted in significant violations of these standards, including issues like water discoloration and the presence of debris in Mission Creek.
The case has fostered an unexpected coalition, bringing together progressive advocates from San Francisco alongside energy firms and business associations, all of whom recognize the implications of the ruling for environmental regulation.
According to former EPA acting general counsel Kevin Minoli, the agency has issued thousands of narrative permits over the years. These permits have functioned as essential backstops, providing mitigation in situations where quantifiable discharge permits lead to unsatisfactory water quality. Minoli pointed out that with the new limitations set by the court, it remains uncertain what regulatory frameworks will replace those that were previously in place.
Justice Alito minimized the ruling’s potential ramifications, asserting that the EPA retains sufficient tools to guarantee adherence to water quality standards. However, reactions from environmental groups paint a different picture. The Sierra Club, based in Oakland, California, expressed significant concerns following the decision. Sanjay Narayan, the chief appellate counsel for the Sierra Club’s environmental law program, remarked that the ruling undermines fundamental principles of water quality management and could hinder the EPA’s capacity to enforce the Clean Water Act—an essential legislative measure safeguarding water safety over the past five decades. He emphasized that the lack of health-based standards in regulating water pollution could lead to delays and inflated costs in the permitting process, ultimately exposing the public to unsafe water conditions.
In response to the Supreme Court’s ruling, San Francisco City Attorney David Chiu and the General Manager of the San Francisco Public Utilities Commission, Dennis Herrera, issued a statement clarifying that permit holders are accountable for their discharges, while acknowledging the need for the EPA to possess adequate authority to uphold water quality standards. They argued that it is unjust to penalize permit holders for factors affecting water quality that lie beyond their control, particularly in shared water bodies.
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