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By a 5-4 vote, the court's conservative majority ruled that the
Environmental Protection Agency overstepped its authority under
the Clean Water Act with water pollution permits that contain
vague requirements for maintaining water quality.
The decision is the latest in which conservative justices have
reined in pollution control efforts.
Justice Samuel Alito wrote for the court that EPA can set
specific limits that tell cities and counties what can be
discharged. But the agency lacks the authority “to include
‘end-result’ provisions,” Alito wrote, that make cities and
counties responsible for maintaining the quality of the water,
the Pacific Ocean in this case, into which wastewater is
discharged.
“When a permit contains such requirements, a permittee that
punctiliously follows every specific requirement in its permit
may nevertheless face crushing penalties if the quality of the
water in its receiving waters falls below the applicable
standards,” he wrote.
One conservative justice, Amy Coney Barrett, joined the court's
three liberals in dissent. Limits on discharges sometimes still
don't insure water quality standards are met, Barrett wrote.
“The concern that the technology-based effluent limitations may
fall short is on display in this case,” Barrett wrote, adding
that "discharges from components of San Francisco’s sewer system
have allegedly led to serious breaches of the water quality
standards, such as ‘discoloration, scum, and floating material,
including toilet paper, in Mission Creek.’”
The case produced an unusual alliance of the liberal northern
California city, energy companies and business groups.
The EPA has issued thousands of the permits, known as narrative
permits, over several decades, former acting general counsel
Kevin Minoli said.
The narrative permits have operated almost as a backstop in case
permits that quantify what can be discharged still result in
unacceptable water quality, Minoli said.
With the new restrictions imposed by the court, “the question is
what comes in place of those limits,” Minoli said.
Alito downplayed the impact of the decision, writing that the
agency has “the tools needed” to insure water quality standards
are met.
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