San Francisco Takes on EPA at the Supreme Court, a Surprising Case for Green-Thinking City

Updated 2:44 p.m. Wednesday

The Supreme Court heard arguments on Wednesday in a significant environmental case brought by San Francisco — one that some city officials are surprisingly hoping to lose.

San Francisco is suing the Environmental Protection Agency because it argues that current law makes the city responsible for more than its share of water pollution, sparking a legal battle that environmentalists fear the court’s 6-3 conservative majority could use to roll back clean water protections on a national scale.

The city’s lawyer argued that San Francisco cannot control the water quality in the ocean or the bay and that being held accountable for it leaves the city vulnerable to unpredictable fines.

“San Francisco’s ask in this case is simple,” said Tara M. Steeley, deputy city attorney. “We simply want to understand our permit limitations so that we can comply with them.”

She said provisions of the Clean Water Act do not clarify how much untreated sewage can be released into local waterways.

“The city wants to limit [the EPA] to only regulating based on what comes out of the pipe,” said Eric Buescher, an attorney with the environmental group San Francisco Baykeeper. “And that just eliminates half of the tool kit that it uses.”

About 90 minutes into oral arguments Wednesday, Chief Justice John Roberts and Justice Brett Kavanaugh indicated they were behind San Francisco’s position. Kavanaugh read from an amicus brief by the Farm Bureau Federation arguing that current clean water standards “expose farmers to potentially devastating and unnecessarily costly consequences of government enforcement, action or citizen suit.”

But others — notably Justice Sonya Sotomayor — hinted they might prefer a narrower ruling than what the city is seeking.

The case began as a local dispute over San Francisco’s Oceanside wastewater discharge permit. San Francisco, along with Sacramento and New York City, is one of about 700 communities with a combined sewer, an older system that runs wastewater and stormwater through the same pipes. The systems regularly overflow during heavy rains. When San Francisco overflows — about 10 times per year, on average — it spills human waste into surrounding waters.

Under the Clean Water Act, San Francisco is required to have a permit “to ensure that the discharge does not hurt water quality or people’s health.” San Francisco has been disputing the terms of its permit since 2019 — first in the 9th U.S. Circuit Court of Appeals, which ruled against the city, and now at the Supreme Court.

The city has said upgrading its sewer system would cost ratepayers over $10 billion, estimating between 8,000-11,000 people would no longer earn enough to cover basic needs and be forced into poverty.

Trade groups representing industries from mining to pork production filed briefs with the Court stating that standards based on water quality could expose them to crippling penalties and litigation. Other cities with combined sewer systems, and facing costly upgrades, wrote to the Court in support of San Francisco.

In September, 14 states including California filed in support of the EPA, writing that state-defined water quality standards are a bedrock principle of the Clean Water Act.

San Francisco considers itself an environmentally progressive city and many, including within city government, were surprised to hear that it had sued the EPA.

“I was honestly not aware that we had a case that had worked its way up to the Supreme Court,” Supervisor Rafael Mandelman told KQED in an interview.

Earlier this month, the San Francisco Board of Supervisors approved a resolution urging the city to withdraw its lawsuit or seek mediation with the EPA. Mandelman voted no because he said the resolution came too late to make a difference.

“As far as I can tell, it was entirely symbolic and a declaration,” he added.

The Supreme Court will present a decision before its current term ends in June.