The Supreme Court dealt another blow to federal environmental protections on Tuesday in a major water pollution case. In a 5–4 ruling in City and County of San Francisco v. EPA, the justices held that the Environmental Protection Agency could no longer hold certain polluters responsible when the cleanliness of American waterways fell below minimum acceptable standards.
Justice Samuel Alito, who wrote for the court, ruled that the agency had gone beyond what the Clean Water Act allowed. “We hold that the two challenged provisions exceed the EPA’s authority,” he wrote. “The text and structure of the CWA, as well as the history of federal water pollution legislation, make this clear. And resorting to such requirements is not necessary to protect water quality.”
In a dissenting opinion, Justice Amy Coney Barrett wrote that the majority had badly misread the text and history of the Clean Water Act’s provisions at issue. (The court’s three liberal justices joined her.) But she also argued that her colleagues had done so in pursuit of a specific outcome that was at odds with what Congress had written.
“Really, the Court’s argument reduces to the broader policy concern that it may be difficult for regulated entities to comply with receiving water limitations and that they may lack adequate notice of a violation,” she wrote. Those polluters could bring other types of legal challenges in those cases, Barrett explained, but “these concerns do not speak to the relevant question here, which is whether receiving water limitations comport with the Act.”
The case represents yet another victory in the Roberts court for polluters, who have again persuaded five conservative justices to adopt stilted readings of environmental laws to reduce their regulatory burdens. The plaintiff in this case—one of the most environmentally conscious cities in the nation—is an unusual one. But the author of the majority opinion was not. Tuesday’s ruling is also a victory for Alito himself, who appears almost eager to rewrite the Clean Water Act more narrowly whenever the opportunity presents itself.
At issue in the case is how the Clean Water Act—and, through it, the EPA—regulates offshore water pollution. The question is particularly important for San Francisco. Like many other major U.S. cities, it handles stormwater and wastewater through the same sewage system. That system is able to treat both types of water without issue under normal circumstances.
When it rains or snows more than usual, however, the city’s sewer system discharges some of the overflow into the Pacific Ocean. That overflow typically consists of an untreated mixture of wastewater, stormwater, and various urban pollutants. That would violate the Clean Water Act, which generally prohibits the disposal of such pollutants into the nation’s waters.
One of the EPA’s tools to combat water pollution under the Clean Water Act is to issue permits for facilities that routinely discharge pollutants into American waterways. Those permits allow the EPA to set certain requirements for would-be polluters to ensure that their outflows meet minimum safety and sanitary thresholds. In exchange for their compliance, permittees are immunized from public or private environmental lawsuits for the duration of the permit, relieving them of the expenses of litigation and short-term regulatory changes.
San Francisco is challenging its current permit requirements on multiple grounds. The one that reached the high court in this particular case centered on what Alito called the permit’s “end-result requirements.” In addition to meeting certain minimum requirements at the outset, the EPA also can also levy penalties against permittees if the relevant body of water—which the court calls the “receiving waters”—falls below minimum quality standards.
Alito concluded that the Clean Water Act gave the EPA no authority to impose such end-result requirements on would-be polluters. The law allows the agency to impose “any more stringent limitation” that is “necessary to meet” state and federal “water quality standards” established by law or by federal regulation. Alito argued that the term “limitation” only allowed restrictions before the fact, not afterward.
“A provision that tells a permittee that it must do certain specific things plainly qualifies as a limitation,” he wrote. “Such a provision imposes a restriction ‘from without.’ But when a provision simply tells a permittee that a particular end result must be achieved and that it is up to the permittee to figure out what it should do, the direct source of restriction or restraint is the plan that the permittee imposes on itself for the purpose of avoiding future liability. In other words, the direct source of the restriction comes from within, not ‘from without.’”
Barrett was not persuaded, to say the least. “Limitation,” she wrote, “is simply a synonym for ‘a restrictive condition.’” She noted that “limitations” based on end results were common in everyday life, like a college limiting scholarships to students who maintain a minimum GPA or an employer who limits bonuses to workers based on performance standards. The end-result requirements, Barrett explained, give “practical effect” to water-quality standards “by making them enforceable.”
She also emphasized that the plaintiffs would still not be without options to challenge those conditions under her reading of the law. “There is no getting around it: The receiving water limitations are ‘limitations,’” she wrote. “If they are vague or unreasonable, they are vulnerable to challenge on one or both of those grounds. But even a vague or unreasonable limitation is still a ‘limitation.’”
Barrett’s reference to Alito’s “broader policy concerns” when it comes to the Clean Water Act is a familiar one. Two years ago, in Sackett v. EPA, he wrote the majority opinion in a decision that sharply limited what types of wetlands count as the “waters of the United States,” the key term for the act’s jurisdiction. Alito held that only wetlands with a “continuous surface connection” to larger bodies of water fell under the Clean Water Act’s terms.
In that instance, Justice Brett Kavanaugh dissented from the court’s new interpretation, which he argued was at odds with the statutory text. “The Court’s test narrows the Clean Water Act’s coverage of ‘adjacent’ wetlands to mean only ‘adjoining’ wetlands,” he wrote. “But ‘adjacent’ and ‘adjoining’ have distinct meanings.” Kavanaugh warned at length that the court’s misreading of the statutory text “will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States.”
In a separate dissent, Justice Elena Kagan agreed with Kavanaugh and argued that Alito’s misreading of the law was driven by his own policy preferences. She pointed to his own phrasing choices that depicted the EPA as a heavy-handed brute and ordinary Americans as its hapless victims. “Congress, [Alito] scolds, has unleashed the EPA to regulate ‘swimming pools and puddles,’ wreaking untold havoc on ‘a staggering array of landowners,’” she wrote. “Surely something has to be done; and who else to do it but this court? It must rescue property owners from Congress’s too-ambitious program of pollution control.”
As evidence of his policy views, Kagan cited Alito’s references to “crushing consequences” for those caught in the EPA’s web. Alito—perhaps intentionally, perhaps not—used the same adjective in Tuesday’s ruling. “When a permit contains such requirements,” he wrote in the San Francisco ruling, “a permittee 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.” (Emphasis mine.)
Alito’s opinion only carries the force of law because four of his colleagues agreed to it. At the same time, the opinions in Sackett and San Francisco speak volumes about the court’s priorities and sympathies. Alito hypothesized at one point about a city that “devise[d] a careful plan” for water quality, “diligently implement[ed]” that plan, and still faced “dire potential consequences” if it failed. The EPA is presumed at every turn to be an onerous, malevolent creature; American cities and companies are well-meaning actors who humbly seek the regulatory relief that only the Supreme Court can offer. Alito and his colleagues are all too happy to provide it, even when the Clean Water Act itself doesn’t.
