On November 21, 2024, the Environmental Law Section will present a CLE on the first major environmental case before the Supreme Court of the United States following the Loper Bright decision last year overruling Chevron deference. The case is San Francisco v. EPA, No. 23-753 (Argued Oct. 16, 2024).
The case reaches back to the old Water Quality Standards system that preceded the Clean Water Act we all know and love. Before the CWA, dischargers were regulated based on the absolute quality of the receiving waters to which they discharged. Enforcement would occur when a waterbody became “overpolluted,” and agencies could sue dischargers who were “causing or contributing” to the reduction of the WQS. This system was inefficient and time-consuming, particularly when it came time to assign blame.
The NPDES system in existence now reverses that approach, focusing on what are known as “effluent limitations”—i.e., limits “on quantities, rates, and concentrations” of pollutants discharged from point sources. 33 U.S.C. 1362(11). Those limitations are still developed by reference to WQS; the difference is that the EPA or the relevant state agency starts with the relevant WQS and then works backwards to set the effluent limitation(s) necessary to meet that goal. This is typically done through technology-based effluent limitations, but where those are insufficient to meet the WQS, the EPA can insist on “any more stringent limitation.” 33 U.S.C. 1311(b)(1)(C). This is the subsection disputed in the case—does EPA have the power to insist on any kind of limitation, or just the kind of limitation generally contemplated by the CWA’s structure?
San Francisco says it’s the latter. They operate a combined sewer system similar in design to the one operating in Indianapolis. In contrast to “separate” systems where sewage and stormwater flow through separate pipes, San Francisco’s system causes the two to comingle on their way to treatment plants. When it rains a lot, the system overflows and discharges fecal bacteria and other pollutants into the Pacific Ocean. That’s bad, and so those discharges are subject to the CWA. In the City’s 2019 permit, the EPA included a requirement that it not “cause or contribute to a violation of any applicable water quality standard.” The City challenges that restriction as outside EPA’s authority because it is not tied to any specific discharge requirement, but instead exclusively to the quality of the ocean waters. The EPA, in general, contends that the statute contains no such limitation and that it has always been empowered to impose these limits.
The case has enormous implications, not just for CSO systems, but for anyone with a NPDES permit. For example, many waterbodies in Indiana are impacted by large amounts of non-point pollution, such as agricultural runoff. A holding allowing EPA or IDEM to impose pure WQS permit standards could be used to restrict NPDES discharges into those bodies further, in order to compensate for non-point pollution that the EPA or IDEM cannot (legally or practically) regulate. Second, although often overlooked, heat is included in the definition of pollutant under the CWA. See 33 U.S.C. 1362(6). In light of the growing concern about ocean temperatures, the case may establish (or foreclose) WQS as a method for the EPA or state agencies to combat climate change by putting new limits on the amount of heat discharged into rivers and oceans around the country.
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