Supreme Court rules for San Francisco, limits EPA’s power on stormwater discharges

WASHINGTON — The Supreme Court’s conservative majority ruled for San Francisco on Tuesday, limiting the power of environmental regulators to prevent ocean discharges of polluted stormwater.

At issue was a regulatory dispute over the permitting standards used by the Environmental Protection Agency.

Storm runoff from coastal cities can pollute bays and the ocean, but city managers argued they should not be held responsible for ocean pollution unless it came from their wastewater treatment plants.

Justice Samuel A. Alito Jr. agreed with San Francisco city and county officials and said an “end result” permit is unfair.

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Even a city 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 said for a 5-4 majority in San Francisco vs. EPA.

He said the EPA retains ample authority to prevent water pollution.

“If the EPA does its work, our holding should have no adverse effect on water quality,” he wrote.

Justice Amy Coney Barrett dissented, noting that the law authorizes the EPA to enforce “any limitation” needed to protect clean water.

The court’s three liberals — Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — agreed with her dissent.

The Sierra Club said the ruling “significantly hinders the EPA’s authority to protect America’s water.”

Sanjay Narayan, its chief appellate counsel, said the decision “ignores the basic reality of how water bodies and water pollution [work] and could stymie the ability of the EPA to implement the Clean Water Act, a bedrock environmental law that has kept water safe for the last 50 years.”

Washington attorney Kevin Minoli, a former acting general counsel at the EPA, said the decision is likely to affect many cities across the country.

“It’s quite common to have a permit provision that prohibits anything that ‘causes’ or ‘contributes’ to polluting the water, he said, quoting one of the disputed provisions that the court threw out.

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Two years ago, the court’s conservative majority sharply restricted the EPA’s authority to protect wetlands.

“The court is continuing to chip away at the Clean Water Act protections,” said Becky Hammer, a senior attorney for freshwater ecosystems at the Natural Resources Defense Council.

“This decision doesn’t change the fact that EPA has to ensure that water pollution permits are strong enough to keep our waters clean. What the decision does is take away one of the available tools for doing that, in a way that’s going to make EPA’s job a lot harder,” Hammer said.

Hammer and other environmental advocates noted that groups representing polluting industries — such as the National Mining Assn. and the American Petroleum Institute — weighed in on San Francisco’s side in the case.

As a result of the ruling, Hammer said, “people all around the country are going to experience higher levels of water pollution in the water bodies where they like to fish, swim, boat.”

However, the National Assn. of Clear Water Agencies, which represents public wastewater and stormwater agencies, applauded the ruling as a “common sense decision will help ensure that the Clean Water Act continues to do exactly what Congress intended — keep our nation’s waters clean and healthy through the imposition of clear, science-based requirements.”

Adam Krantz, its chief executive, said that when “permits are transparent and implementable, utilities can invest public dollars in projects that protect water quality instead of guessing what those projects should be.”