What’s At Stake in The Pending Supreme Court Decision: City and County of San Francisco v. Environmental Protection Agency?

On October 1, 2024, the United States Supreme Court heard arguments in a Clean Water Act case between the City of San Francisco and the United States Environmental Protection Agency (EPA) that could significantly impact local and national environmental policies. At issue are storm water permits required through the National Pollutant Discharge Elimination System (NDPES) for entities that may discharge pollutants into Waters of the United States.

Briefly, the city of San Francisco operates a combined sewer system (CSO), collecting sewage and stormwater. Depending upon the storm event, the system can overflow, sending pollutants into the Pacific Ocean. To help combat this effect, the City built the Oceanside treatment facility. In 2019, it received a NPDES permit that included, among other requirement, “narrative” limits: a general prohibition on water quality standards violations.

The City unsuccessfully challenged the permit through an administrative appeal to EPA and the Ninth Circuit Court of Appeals. The question before the Supreme Court is whether NPDES permits must identify specific limits for dischargers to meet, or whether they can simply ask permittees to meet water quality standards.

Interestingly, both San Francisco and EPA seek to protect water quality. EPA is focused on maintaining its ability—and California’s—to enforce effective provisions in Clean Water Act permits, thereby preserving regulatory authority over water quality. San Francisco, as a downstream city, has a strong interest in upholding stringent permits to prevent increased pollution from upstream dischargers, which could adversely affect the city's shoreline parks, beaches, and ocean environments. However, as drafted, the permit holds the City responsible for the overall quality of the ocean water, over and above what it discharges from its treatment plant.

Bringing this dispute to the Supreme Court carries considerable risks. Recent judicial trends, such as those seen in the 2023 Sackett v. EPA case, point toward a movement to weaken environmental protections under the pretext of simplifying regulations. There is a concern that this case could further undermine the Clean Water Act, impacting not just San Francisco but potentially setting a damaging precedent for environmental regulation nationwide.

The pending decision from the Supreme Court has far-reaching implications. On one hand, non-numeric standards provide flexibility for permit holders. Compliance is measured by efforts, not results, which is often at odds with a desire to protect national waters. On the other hand, simply asking permit holders to “not violate” can make compliance difficult and may result in inefficiencies. Yet over and above these practical questions, the real impact of this case may be to test the current Supreme Court’s appetite for rewriting the Clean Water Act and setting boundaries on agency authority. Stay tuned.