San Francisco is battling with itself over a Supreme Court appeal it will likely win

By John Fritze, CNN

(CNN) — The Supreme Court heard arguments Wednesday in an important environmental appeal – 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 court’s conservatives have repeatedly ruled against the Environmental Protection Agency 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 5-4 majority upended President Joe Biden’s effort to reduce smog and air pollution wafting across state lines in what was known as the “good neighbor” rule. A year earlier, the court reduced the EPA’s ability to regulate wetlands under the Clean Water Act.

In 2022, the court curbed the agency’s ability to broadly regulate carbon emissions from existing power plants.

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 overturned a 1984 precedent 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, a 6-3 majority declined to read a “catch all” provision 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.

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