Home
.-') _ .-') _
( OO ) ) ( OO ) )
.-----. ,--./ ,--,' ,--./ ,--,'
' .--./ | \ | |\ | \ | |\
| |('-. | \| | )| \| | )
/_) |OO )| . |/ | . |/
|| |`-'| | |\ | | |\ |
(_' '--'\ | | \ | | | \ |
`-----' `--' `--' `--' `--'
lite.cnn.com - on gopher - inofficial
ARTICLE VIEW:
San Francisco is battling with itself over a Supreme Court appeal it
will likely win
By John Fritze, CNN
Updated:
2:34 PM EDT, Wed October 16, 2024
Source: CNN
The Supreme Court heard arguments Wednesday in an – a case that at
least some city leaders are desperately hoping to lose.
That’s because the unusual case involving sewage discharges into the
Pacific Ocean has put a city known for its uber-liberal politics in
league with the oil and gas industries, queuing up a fight that the
court’s 6-3 conservative supermajority may use to weaken clean water
regulations nationally.
“We’re setting a playbook for a lot of other polluters,” lamented
Scott Webb, vice chair of the Sierra Club San Francisco Bay Chapter.
“It’s shocking that it’s coming from San Francisco.”
After more than 90 minutes of argument Wednesday, many of the court’s
conservatives – notably Chief Justice John Roberts and Justice Brett
Kavanaugh – signaled they were firmly in support of San Francisco’s
position. But others signaled a desire to find a more limited outcome
than the city is seeking.
Underscoring the internal conflicts over the case in San Francisco, the
city’s board of supervisors voted 8-2 last week to urge city
officials to resolve the suit quickly, warning that a Supreme Court
ruling in its favor could “greatly harm water quality nationwide.”
That resolution was not binding, however, and the city’s attorney
said he has no intention of backing down.
“I’m very nervous about going to the court,” San Francisco
Supervisor Myrna Melgar told CNN before the arguments on Wednesday,
stressing that she was not opining on the city’s legal strategy but
rather the wisdom of taking an environmental case to the conservative
high court. “We run the risk of having it apply to everybody.”
The hesitation reflects the fact that the in recent years and have also
limited the power of federal agencies to act without explicit authority
from Congress. Both factors suggest a win for San Francisco.
And that’s exactly what some San Franciscans fear.
Roberts and Kavanaugh oppose EPA
At the center of the dispute are “narrative” requirements from the
EPA demanding that the city not violate “any applicable water quality
standard” when it pumps sewage into the Pacific Ocean. The city
argues those requirements are squishy because they rely on general
terms rather than setting specific limits for how much pollution is too
much.
Roberts appeared particularly opposed to the EPA’s position on the
point, repeatedly noting that Congress had updated the law specifically
to address the kind of concern San Francisco was raising: a lack of
clarity about what cities must do to meet federal requirements.
“I think the danger here is that you’re going back to the other
system because it, one, gives more power to you,” Roberts said to the
EPA’s lawyer, describing the earlier system as the “bad old
days.”
Kavanaugh was even more direct.
“The problem is you can go after an individual entity like the City
of San Francisco based on the past, when they didn’t know what the
relevant limitation on them was,” he said. The federal government,
Kavanaugh said, could try to enforcement the requirements with “huge
penalties, including criminal punishment.”
That prompted conservative Justice Amy Coney Barrett, who remained
relatively quiet throughout the argument, to question how often the EPA
had ever actually levied criminal charges against cities for violating
the Clean Water Act – a question that appeared designed to counter
some of Kavanaugh’s concerns.
Frederick Liu, representing the Biden administration, said he wasn’t
aware of a single instance of prosecution against a city or county.
All three members of the court’s liberal wing appeared deeply
skeptical of San Francisco’s argument.
“There’s got to be something in this statute that tells you that
the agency can’t decide to go the less prescriptive, more flexible,
you-decide-how-to-meet-it” route, Justice Elena Kagan said, framing
the general requirements as giving the city more room to maneuver. “I
don’t see anything in this statute that does that.”
Liu said that the EPA would also prefer to use specific requirements
but said it couldn’t do so in this case because San Francisco had
declined to provide the kind of information it needed to set those
goals. That led several justices to ponder a more limited ruling that
might allow the “narrative” requirements only in situations when
the EPA didn’t have enough information from municipalities to set
clear targets.
City attorney: San Francisco won’t blink
Underneath the political brawl is a fight over San Francisco’s sewer
system, which – like many cities – is unable to fully treat all of
its wastewater after heavy storms. When one of its treatment facilities
reaches capacity, the city winds up pumping barely treated sewage into
the Pacific Ocean.
For decades, the EPA set limits under the Clean Water Act on how much
“effluent” the city could dump into the sea. But in 2019, federal
regulators also required the city to meet two generic provisions –
including a requirement that any discharges “not cause or contribute
to a violation of any applicable water quality standard…for receiving
waters.”
City officials say that standard is impossibly fuzzy. City attorney
David Chiu said EPA’s requirements make San Francisco liable for
enforcement actions without providing specific targets for how much
sewage is too much. And that, he said, puts San Francisco on the hook
for the overall water quality of the Pacific Ocean.
“It’s an unworkable standard. We’ve been asking for clear
guidance and the EPA hasn’t given us specific answers,” Chiu told
CNN. “Cities and counties all over the country are joining us to ask
for clarity.”
Chiu flatly rejected requests for the city to settle the litigation.
“The answer’s no,” he said, adding that fully addressing the
problem of sewer overflows would cost city ratepayers billions of
dollars.
Wastewater agencies from across the nation are siding with San
Francisco, including those in Boston, New York, Tacoma, Indianapolis
and Louisville.
The National Mining Association, the American Petroleum Institute and
the American Chemistry Council have also filed briefs backing the city
because they fear becoming “legally responsible for the overall
quality” of water.
In other words, a win for San Francisco could undermine the EPA’s
ability to police a broader swath of polluters. And that has given
environmentalists and others following the case pause.
“What’s going on is tactically shortsighted on all sides,” said
Dave Owen, a professor at the UC Law San Francisco. “EPA and San
Francisco, by litigating this case before the Supreme Court, are
putting a piece of state and federal authority at risk.”
Conservative justices oversee EPA defeats
The dispute arrives the Supreme Court at a time when the EPA has
endured a series of significant blows from the court’s conservative
bloc.
In June, a President Joe Biden’s effort wafting across state lines
in what was known as the “good neighbor” rule. A year earlier, the
court reduced the under the Clean Water Act.
In 2022, the court curbed the agency’s ability to broadly .
The court has also steadily undermined the power of federal agencies in
recent years in cases that have nothing to do with the environment.
In a major ruling this summer, a 6-3 majority that directed courts to
defer to federal agencies interpreting vague laws. In siding with the
EPA in the San Francisco case last year, the 9th US Circuit Court of
Appeals relied in part on that precedent.
The Clean Water Act, enacted in 1972, allows the EPA to set clear
discharge limits as well as “any more stringent limitation” the
agency views as “necessary to meet water quality standards.”
That sweeping language, the Biden administration argues,
“unambiguously establishes” that EPA has the power impose broad
requirements on polluters besides specific discharge limits.
Earlier this year, in a case dealing with rioters on January 6, 2021,
of another law as granting sweeping power to prosecute members of the
mob on obstruction charges. That’s because, like the Clean Water Act,
the provision at issue in the criminal statute followed more specific
language dealing with evidence tampering.
Environmentalists fear a similar reading of the Clean Water Act could
have disastrous results.
Webb, the Sierra Club advocate, described the city’s approach as
“risky.”
“It’s a pretty crazy game of chicken they’re playing,” he said.
This story has been updated with additional details from oral
arguments.
DIR <- back to index