This entry was authored by MGKF Summer Associate Autumn Chassie

On May 28, 2024, the Supreme Court agreed to decide City and County of San Francisco v. Environmental Protection Agency. This case arose after the Environmental Protection Agency (“EPA”) required San Francisco to update its long-term control plan for combined sewer overflows and to re-evaluate alternatives for discharges during heavy rains when the system’s capacity is exceeded. 75 F.4th 1074 (9th Cir. 2023). The primary issue is whether the Clean Water Act (“CWA”) allows EPA to impose general prohibitions in National Pollutant Discharge Elimination System (“NPDES”) permits, which could subject permit holders to enforcement actions for violating water quality standards without specifying exact discharge limits.

San Francisco challenged EPA’s practice of including broad, narrative restrictions in NPDES permits, arguing these conditions were too vague. The case escalated after EPA insisted that San Francisco update its plan for handling combined sewer overflows, especially during heavy rains when untreated wastewater could be discharged. The Ninth Circuit sided with EPA, holding that the agency had the authority to enforce these broad permit conditions, finding that the city had to  comply with other applicable water quality standards in the state in accordance with its permit. San Francisco petitioned to the Supreme Court, which agreed to hear the case. The outcome could clarify how the CWA should be interpreted concerning narrative versus specific numeric limits in wastewater discharge permits.

San Francisco argues that EPA’s permit conditions are too vague, leading to enforcement without clear standards. The city contends that this approach violates the CWA because it does not provide specific discharge limits, thus failing to give proper notice of what is required. San Francisco claims that the regulations are arbitrary and inconsistent, subjecting it to potential penalties without clear guidance. EPA, however, maintains that the permit requirements are clear and specific enough to protect water quality, arguing that narrative limitations are a valid method to enforce the CWA.

Potential impacts of this case include clarity on permit conditions, enforcement and compliance concerns, and regulatory uncertainty. This case could clarify whether EPA can continue using broad, narrative conditions in permits or if it must specify numeric discharge limits. The case may impact how permits are drafted and challenged. For example, a ruling more favorable to San Francisco might restrict EPA’s enforcement power, requiring clearer guidelines and reducing the risk of arbitrary enforcement. This could benefit organizations who face penalties under ambiguous permit conditions, allowing for more predictable compliance measures.

In their amicus brief, the National Mining Association and other trade organizations supported San Francisco’s position against EPA due to concerns over increased regulatory burdens. They argued that the Ninth Circuit’s ruling could lead to excessive liability and enforcement challenges for industries including mining, manufacturing, and agriculture. These groups believe the decision disrupts economic activities and creates inconsistencies in environmental regulations across different jurisdictions.

Similarly, the National Association of Clean Water Agencies and various public clean water utilities support San Francisco’s position. They argued that a decision to uphold generic prohibitions in NPDES permits introduces regulatory uncertainty and inconsistency, undermining the goal of the CWA to provide clear guidelines. The organizations explained that this uncertainty threatens significant investments in water infrastructure and increases costs for ratepayers, including disadvantaged communities, without necessarily improving water quality.

If the ruling significantly alters how EPA can impose conditions, there might be a period of regulatory uncertainty as new guidelines are developed and implemented. While stricter requirements for specific discharge limits might lead to improved water quality, it could also lead to increased operational costs for businesses.

Overall, this case could reshape the regulatory landscape. It could also have significant implications for how NPDES permits are issued and enforced, potentially affecting municipalities and industries across the country, especially in the context of increasing storm surges due to climate change.

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