Supreme Court justices were divided Wednesday in a dispute between San Francisco and the Environmental Protection Agency over how to stop contaminated water from flowing into the Pacific Ocean during storms.
The dispute centers on a technical dispute over language used in permits issued by the U.S. Environmental Protection Agency.
The case raises the question: Can regulators punish a city if it widely “contributes” to water pollution, or must they focus narrowly on the city’s actual emissions?
A ruling on the issue could severely limit the EPA’s authority to enforce clean water standards.
Lawyers for San Francisco told the court it would be “unfair and unfeasible” to saddle the city with huge fines due to contaminated water at the city’s nearby Pacific Beach.
They said the contamination may have originated from other sources around the bay.
“San Francisco can control its emissions, not its water quality,” said Deputy City Attorney Tara Steely. “We want to understand our limitations. The license doesn’t tell us what we need to do.
Los Angeles and Southern California have the same problem, she said. She said large cities may be responsible for contaminated seawater, even though the contaminants may have come from dozens of other cities.
The court’s liberal wing was quick to disagree.
The law “stipulates that water quality standards must be met. What could be clearer?” Judge Elena Kagan asked.
“You are being held accountable,” Judge Sonia Sotomayor said.
But Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh said the EPA should tell cities more specifically what they must do to Follow the law.
“You have tens of millions of dollars of responsibility and you don’t know your obligations,” Kavanaugh said, looking at the issue from a city government’s perspective.
Justice Department lawyers representing the EPA strongly disagreed with that notion.
“San Francisco knows what it needs to do. Its old sewer system is failing,” said Assistant Attorney General Frederick Liu.
During heavy rains, the city’s Oceanside plant was unable to handle storm runoff, and sewage and sewage were discharged into the Pacific Ocean.
He agreed the city could face tens of millions of dollars in fines for discharging pollutants in violation of permits.
Lawyers for the city said the actual amount could be in the billions of dollars.
The city and county of San Francisco had challenged the EPA’s permit, arguing it exceeded federal law, but lost in a 2-1 ruling in the Ninth Circuit.
The Supreme Court is likely to rule early next year.
Environmentalists harshly criticized the San Francisco city attorney for filing the appeal.
“The Clean Water Act does not contain the restrictions that San Francisco is asking the court to add, restrictions that prevent the EPA from ensuring that polluters do not threaten public health and safety,” said Sierra Club attorney Sanjay Narayan.
“This is an extremely irresponsible decision that does a disservice to the residents of San Francisco and the entire country.”
