On Tuesday, the Supreme Court ruled 5-4 in favor of San Francisco in a case about the Environmental Protection Agency’s (EPA) sewage permits issued under the Clean Water Act (CWA). The court ruled that the EPA’s “end-result” water pollution permits are too speculative and that the EPA overstepped its authority in the case of San Francisco v. EPA.
Occasionally during a heavy rainfall event, in order to avoid flooding, older cities will dump raw sewage into the nearest body of water — this is called a combined sewer overflow event. This happens in many places: in San Francisco with its proximity to the Pacific Ocean, in Detroit with the Rouge and Detroit rivers and in Chicago with the Chicago River.
San Francisco v. EPA started after the environmental agency found that the city violated the directives of a 2019 permit involving combined sewer overflow. However, city officials claimed that the rules were so amorphous that they were never clear about when or if they crossed a line. The city felt they shouldn’t be held responsible for the millions of dollars they owed the EPA, for any violation of the CWA, held under these confusing terms. Now, the high court has blocked the EPA from issuing these permits that aim for the “end-result” for their determinants of clean water.
So what does this ruling mean for the future of the CWA? Attorney Albert Ettinger, who’s worked for almost three decades on protecting water quality and implementing the CWA, said this could mean it’ll get a lot harder to write permits — by taking off the backstop.
“We’ve got various types of laws in society. Some of them are quite specific. I like to use traffic analogies, because everybody deals with traffic laws,” said Ettinger. “We’ve got some very sharp lines like, you know, 55 mph speed limit — that’s very clear. If you go 56 you are violating the law. In fact, in practice, we never enforce it that way, and if a police officer stopped you for going 56 you’d be pretty annoyed. But the point is, we have a very sharp line. We also have laws that say things like, ‘thou shalt not engage in reckless driving’ and that’s kind of loosey-goosey.”
Ettinger went on to use the movie Groundhog Day as an analogy. He said, if a police officer stopped Bill Murray while driving with a groundhog on his lap, and accused him of reckless driving because of the groundhog, Murray might ask where in the law it explicitly says he can’t do that.
“I mean, let’s say Bill Murray gets to the Supreme Court in his groundhog case, and they say: ‘you’re right, they haven’t spelled out that you can’t have a groundhog in your lap while driving.’ So, the city loses that case, he goes free,” said Ettinger. “So what are they going to do now? They’ve got to go rewrite their law and spell out in more precision. You try and word it broadly, but there’s always going to be some imprecision at the edges. The basic overall problem, presumably the cause or contribute language that’s in all of the combined sewer overflow permits is going to come out, and not just for San Francisco — it will come out for Detroit, Chicago, etc.”
Ettinger went on to explain how permit writers will then have to compensate because they can’t use this broad catch-all phrasing to cover as much as they can. Now, permit writers will likely have to get much more precise. He said, in a sense, that sounds good — except when it’s looked at within the overall context of what is going on, then it actually becomes a big problem.
Most of the state permit writing agencies are underfunded, he said, so they don’t have time to write in all these kinds of specific details. He added, what is most likely to happen, are huge backlogs. By making these permits harder to write, what is likely to happen is that the very thing these permits are aiming to prevent or protect — they just won’t get done.
“I don’t want to exaggerate this, I am an environmentalist but I try not to be an alarmist environmentalist,” said Ettinger.
However, this decision comes after the last few years, with cases where the conservative justices have voted against certain environmental protection efforts. Many environmental advocates see this as further chipping away at the CWA and the EPA — after the loosening of wetland protections in Sackett v. EPA and Loper Bright Enterprises v. Raimondo which repealed the Chevron Deference, meaning that the courts no longer have to first defer to the government agencies, like the EPA.
“I’ve lost a lot more cases because of deference to government agencies than I’ve won them because, you know, I generally represent environmental groups,” said Ettinger, adding some complexity to the recent Supreme Court rulings. “We’re mad because the Corps of Engineers granted a permit, or the highway administration agreed to build a road through a nature preserve. And so we’re in the position of saying, Your Honor, you’ve got to stop this road. It violates the Endangered Species Act or it violates the Clean Water Act, and it’s always the government that’s on the other side saying: ‘oh, no, Judge, we’re just doing our jobs. You should defer to us, and we think this is the best place to put the road.’”
The American Gas Association, American Chemistry Council, American Petroleum Institute and National Mining Association all wrote the high court in October, backing San Francisco in this case. The state of California along with 14 other states, small businesses, fishermen and environmental groups all wrote in support of the EPA.
“Let’s take the mining industry or the Farm Bureau, or somebody like that, they see themselves as generally being the regulated entity,” said Ettinger. “And so, they don’t want laws and they don’t want permits that have general terms.”
He went on to explain how they’re in the position of the driver who asks, “what do you mean I can’t drive with a groundhog in my lap?” That he could speculate on what’s going on in California, and that it’s Ettinger’s assumption that the state is in the position of the police officer, who stops the driver.
“They’d be saying, ‘wait a minute, you know, we’ve got to have laws like this that are general rather than particular because we can’t anticipate every kind of animal somebody might have in their lap while they’re driving, and spell it out in advance.’”
Catch more news at Great Lakes Now:
What the overturning Chevron deference means for the Great Lakes
What are wetlands for, anyway?
Featured image: The front of the US Supreme Court building in Washington, DC. (Photo Credit: iStock)
