US Supreme Court
In New Session, High Court Split Seen in San Francisco Discharge Permit Ruling
Justices heard oral arguments in San Francisco wastewater utilty permit discharge challenge, with observers seeing potential split in their ruling
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In one of the first US Supreme Court cases argued in the 2024-2025 session earlier this month, reactions were split among justices set to decide whether National Pollutant Discharge Elimination System permits can be enforced under the federal Clean Water Act if they include generic, rather than specific, wastewater treatment discharge mandates.
The case pits municipal water-sector utilities and construction and business trade groups against the U.S. Environmental Protection Agency. The City and County of San Francisco seeks high court review after a federal. appeals court in that city rejected a utility commission argument that language in its new permit was so vague that the city could face penalties for not meeting requirements.
“We simply want to understand our prohibition limits so we can comply with them,” argued Tara M. Steeley, deputy city attorney, who said billions of dollars in upgrades have been made to its aging Oceanside wastewater treatment plant. Amanda Aspatore, general counsel of the National Association of Clean Water Agencies, which filed a brief supporting the utility, says federal permits must provide clear guidance as to what can be safely discharged into U.S. waters. Also in support are major industrial trade groups American Petroleum Institute and American Chemistry Council
U.S. Justice Dept. Assistant Solicitor General Frederick Liu, representing EPA, countered that missing permit filing details “made it impossible ... to impose anything other than generic limitations.” About 14 states, including California, filed briefs last month supporting the agency.
According to SCOTUSblog, justices are split along expected political lines, but unanimity also is unclear among conservative justices. Environmental advocates worry about impacts on national discharge rules if the court supports the city, with the Natural Resources Defense Council noting “very troubling implications.”
Days before the Oct. 17 arguments, San Francisco supervisors approved, 8-2, a non-binding resolution urging city officials to resolve the suit before the high court ruling could “greatly harm water quality nationwide.” Justices could rule as early as the first quarter.
But in an unexpected action in a separate case, say attorneys from Davis Polk, the Supreme Court on Oct. 16 rejected a plea by utilities, independent power producers and states to pause EPA's Power Plant Rule that mandates emissions control and was finalized in May for coal-fired and new gas-fired power plants while a lower court weighs opponents' larger legal challenge. The action follows two similar ones by the court this month related to EPA rules.
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“Given its rulings in recent years undercutting protections, the refusal of the majority ... to block this vital rule is a victory for common sense,” said senior NRDC attorney Meredith Hankins. The lawsuit now returns to the Washington, D.C., appeals court for a ruling.
But the Nov. 5 election outcome could also further affect rule implementation, if Republican Donald Trump wins his presidential bid.
