When it rains too much in San Francisco, the city's wastewater treatment plant can get overloaded. An overloaded wastewater treatment plant means that a city-operated, EPA-permitted point source in the Pacific Ocean could discharge raw sewage.
The question before the U.S. Supreme Court in San Francisco v. EPA was what conditions—"limitations," in the language of the Clean Water Act—EPA could include in a permit to control the city's discharges. In a decision that drew on dictionary definitions, the "history of federal water pollution control legislation," and the Clean Water Act's "broader statutory scheme," the Court held that EPA could not condition the city's permit on the "end-result": water quality in the Pacific.
The Clean Water Act expressly authorizes regulators to include numerical "effluent limitations" in permits for pollutant discharges. But the Act also says that those permits may include "any more stringent limitation" established by law. San Francisco's lead argument was that the phrase "any more stringent limitation" implicitly meant effluent limitations, thereby excluding permit conditions that targeted water quality in the Pacific. In a section of the decision joined by eight justices, the Court rejected San Francisco's argument. But for five justices, that holding did not end the case.
By a 5–4 vote, the Court struck down the "end-result" requirements in the city's permit. Citing dictionary definitions, the Court explained that when the Clean Water Act said regulators could impose a "limitation" that was "necessary to meet" or "required to implement" water quality standards, it was talking about limitations as "concrete measures," not desired results. And since EPA's "end-result" permit requirements were not sufficiently concrete limitations, the Court found them out-of-bounds.
The dissent thought this reading of the word "limitation" was "wrong as a matter of ordinary English"—and had its own dictionaries to prove it. But dictionaries were not the only (or even the main) source of the majority's interpretation. It also leaned on the Clean Water Act's history as a replacement for exactly the kind of "end-result" statutory scheme that EPA's permit reimposed. And, as a more practical matter, the Court pointed out that an end-result limitation would poke holes in the Act's permit shield, while also making it nearly impossible to divvy up responsibility for a water quality violation that involved multiple permit holders.
This intra-squad textualist debate has at least two related implications. First, from an advocacy perspective, it expands the ways that lawyers can argue before textualist judges (which, as Justice Kagan has noted, is nearly all judges now). For an experienced advocate, dictionaries are just one tool. Especially when a case involves a complex, decades-old law like the Clean Water Act, judges are looking for arguments that allow the "overall statutory scheme" to make sense.
So does the Clean Water Act make more sense now? That remains to be seen. The second implication of the Court's decision is that regulators can't include end-result requirements in water discharge permits. Instead, their permits must specify what steps the permit holder should take. If the permit holder follows those steps, they're protected by the Act's permit shield. That way of reading the Act made sense to the majority. But it makes life harder for the regulators, who may have to spend more time specifying permit terms, which could slow the whole permitting process down.
