One of the nation’s most liberal enclaves encountered pushback from the liberal wing of the Supreme Court on Wednesday as San Francisco battled the Environmental Protection Agency over city wastewater spilling into the Pacific Ocean.
The argument was peppered with references to feces and toilet paper floating into open waterways, but underlying the potty talk was a dispute about how much power Congress gave the EPA in the Clean Water Act.
San Francisco said it would abide by a 300-page permit for its wastewater discharges but not vague EPA rules that cover the “odor” of fish or the “discoloration” of ocean waters. The city said those regulations amount to moving targets that are impossible to hit.
“We simply want to understand our permit limitations so we can comply with them,” said Tara M. Steeley, San Francisco’s deputy city attorney.
The court’s liberal-leaning justices suggested that Congress wrote the Clean Water Act to give the EPA wide-ranging powers.
“What in the statute prevents the EPA from doing this?” Justice Elena Kagan asked.
Under the Clean Water Act, the EPA works with potential sources of pollution to govern water discharge, often through specific permits such as San Francisco’s. The EPA says San Francisco must meet general water quality standards in addition to those in the permit.
The court’s conservative-leaning justices said the Clean Water Act was supposed to end those general standards.
“The danger here is that you’re going back to the other system because one gives more power to you,” Chief Justice John G. Roberts Jr. told the federal government’s attorney, Assistant Solicitor General Frederick Liu.
Lower appeals courts have split on interpretations of the Clean Water Act.
The 2nd U.S. Circuit Court of Appeals ruled that the law requires the EPA to set specific limits for surface water quality. The 9th Circuit, which includes California, held that generic standards were acceptable.
Justice Sonia Sotomayor said the EPA is trying to force San Francisco to meet its obligations.
“You can’t get past the obligation to meet the water standards unless you put them into the permit,” she told the city.
San Francisco said the permit can be rewritten whenever the EPA finds new problems. Justice Sotomayor was skeptical. She said that would take “months and years.”
Ms. Steeley said the process can be expedited.
“Only if you’re cooperating,” Justice Sotomayor said.
The law allows monetary and criminal penalties. San Francisco said the EPA is suing the city for millions of dollars in penalties.
Mr. Liu said the city is pouring more than 196 million gallons of sewage onto California beaches and creating conditions that lead to backups in homes and businesses.
“We know that the limitations that already exist in the permit are not enough to protect water quality,” Mr. Liu said. “Then the question is: How do we fill that gap?”
The EPA said San Francisco added to the problem by refusing to detail how its system works.
Mr. Liu said the EPA could more narrowly tailor its goals if the city is more forthcoming. Otherwise, he said, the government has no choice but to set broad health goals that generate complaints from the city.
Justice Samuel A. Alito Jr. wondered whether that could create some middle ground for an eventual ruling. In cases where the EPA can’t get information, the court ruled that it can deliver more generic goals.
“We don’t mind an opinion that says that,” Mr. Liu said.
At issue is pollution limits for National Pollutant Discharge Elimination System permit holders. The system regulates water sources in the U.S. and is designed to create enforcement and permitting under the Clean Water Act.
The case is City and County of San Francisco v. U.S. Environmental Protection Agency.
A decision is expected by the end of June.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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