THE U.S. SUPREME COURT
City and County of San Francisco v. EPA (March 4, 2025)
In the first major environmental decision by the Court in the 2024 Term, the Court’s analysis of the Clean Water Act concluded that there was no provision in the Act supporting the imposition by EPA of an ambiguous water quality standard. Indeed, the majority lamented the absence of any concrete plan to achieve compliance. In addition, the Act’s “permit shield,” that deems a permittee to be in compliance with the law if it is adhering to the terms of its permit, could be imperiled by this new standard. (Interestingly, the opinion does not mention the recent revocation of the Chevron doctrine, which placed many agency determinations beyond the reach of the reviewing courts.) There were four dissenters, led by Justice Barrett, who was persuaded that a receiving water quality determination permit condition was consistent with the Court’s review of the CWA.
The city of San Francisco owns and operates a complex wastewater treatment facility that is subject to a municipal Clean Water Act NPDES permit issued by EPA. However, the latest permit renewal contains new provisions that make the permittee “responsible for the quality of the body of water into which the permittee discharges pollutants.” The Supreme Court, holds that this new requirement is not authorized by the text of the Act. Moreover, even if a permittee “punctiliously” follows every requirement of the permit, if the quality of the receiving water falls below the applicable standard—which the permit does not set forth in any particularity—the Court suggests that the city could be heavily penalized for such a transgression even though it was never obligated by the permit to take any specific steps other than those it undertook.