This week our nation's highest court was scheduled to discuss whether to hear the City and County of San Francisco's appeal of a split Ninth Circuit decision upholding an EPA NPDES permit issued to the City and County containing two general narrative prohibitions on discharges from the Oceanside combined sewer system and wastewater treatment facility.
One of those prohibitions was of discharges from the Oceanside facility that “cause or contribute to violations of applicable water quality standards.” This was only months after the Supreme Court's opinion in Sackett v. EPA, also an appeal of a Ninth Circuit decision, in which our nation's highest court found EPA's (and the Ninth Circuit's) interpretation of the term “Waters of the United States” in the Clean Water Act “hopelessly indeterminate” in the face of the due process requirement that penal statutes be defined "‘with sufficient definiteness that ordinary people can understand what conduct is prohibited’ and ‘in a manner that does not encourage arbitrary and discriminatory enforcement.’”
Because there is no way that “cause or contribute to violations of applicable water quality standards” is any less “hopelessly indeterminate” than what was EPA's definition of “Waters of the United States” before the Supreme Court stepped in, and the penalties, and opportunities for citizen suits, are as potentially draconian for violations of NPDES permits as they are for violations of “dredge and fill” permits of the sort that EPA would have required of the Sacketts, I was pretty sure the Supreme Court was going to take this case.
The City and County of San Francisco, and the fifteen industry groups and dozen or so water supply and conservation associations supporting them, spoke articulately of the possibility of the sort of crushing enforcement that concerned the Supreme Court in Sackett and I suspect that would have been enough for the Sackett majority.
But then, just days before the Supreme Court was to decide what it was going to do, EPA sued San Francisco, turning what was a possibility into a certainty. Now, as I said to Sam Hess, of Inside EPA, there may be a compelling reason that EPA absolutely needed to file suit against the City of San Francisco right this second. I can’t for the life of me think of what that reason would be. In the absence of such a compelling reason, this was a strategic blunder but perhaps not one of consequence because, like I said, I think the Supreme Court was going to get involved anyway.
In the ordinary course, one would expect San Francisco and EPA in a Democratic Administration to be on the same side of an environmental issue. But that certainly is not the case here and EPA has taken a challenging case and made it even more so. At some point EPA is going to have to deal with the Supreme Court we have instead of the one it wishes we had. Or Congress could get involved but now who is “California dreaming”?
