The U.S. Supreme Court ruled 5-4 on Tuesday to limit the Environmental Protection Agency’s (EPA) authority in enforcing the Clean Water Act (CWA). The decision blocks the agency from issuing pollution discharge permits that make permit holders responsible for overall surface water quality, a move that undermines federal water pollution controls.
The ruling, authored by Justice Samuel Alito and joined by Chief Justice John Roberts and Justices Clarence Thomas, Brett Kavanaugh, and Neil Gorsuch (who joined part of the opinion), was a victory for San Francisco. The city had challenged the EPA’s practice of issuing general “narrative” wastewater permits, which prohibit discharges that contribute to violations of water quality standards without specifying how compliance should be achieved.
Implications for water pollution permitting
The Supreme Court’s decision holds that the EPA cannot employ broad, water body-focused pollution discharge limits but must provide specific limitations in its permits. In its challenge, San Francisco argued that the EPA overstepped its statutory authority by imposing generic restrictions without clear guidelines on how to meet them. The case reached the high court after the Ninth Circuit upheld the EPA’s ability to include such conditions in Clean Water Act permits.
The Guardian reports that Justice Alito wrote: “The agency has adequate tools to obtain needed information from permittees without resorting to end-result requirements,” The term “end-result” permit, coined by the Court, refers to permits that broadly prohibit pollution but fail to define specific steps that permittees must take to comply.
The ruling has widespread implications, particularly for municipalities and industries holding National Pollutant Discharge Elimination System (NPDES) permits under the Clean Water Act, explains full-service law firm Michael Best in a recent press release. These permits regulate discharges into U.S. waterways by setting pollutant concentration or mass limits and requiring operational practices or control technologies.
Background on the case
San Francisco’s combined sewer system, which collects both stormwater and wastewater for treatment, occasionally overflows during heavy rainstorms, leading to raw sewage discharges into the Pacific Ocean. In 2019, when the city renewed its NPDES permit, the EPA included broad prohibitions on discharges contributing to water quality standard violations or causing degradation of receiving waters. San Francisco contended that these provisions effectively held it strictly liable for water quality outcomes without providing clear compliance measures, according to Michael Best.
The Supreme Court ruled in favor of San Francisco, determining that such requirements exceed the EPA’s authority. The Court reasoned that the Clean Water Act’s permitting structure is based on objective effluent limitations, not general prohibitions that lack clear directives. The ruling also emphasized that such broad restrictions could negate the “permit shield” that protects compliant permit holders from enforcement actions.
Dissenting opinion and concerns
In a dissenting opinion, according to the Guardian, Justice Amy Coney Barrett, joined by Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, criticized the majority’s decision, arguing that the Clean Water Act explicitly authorizes the EPA to impose more stringent permit limitations when necessary to meet water quality standards.
“The city is wrong,” wrote Barrett. “The relevant provision of the Clean Water Act directs EPA to impose any more stringent limitation that is necessary to meet… or required to implement any applicable water quality standard.”
Environmental groups and legal analysts warn that this decision could weaken federal water quality protections by making it harder for the EPA to enforce broad pollution controls. Additionally, the ruling may have ramifications beyond water regulations, potentially affecting Clean Air Act permits, which contain similar provisions restricting emissions that contribute to air pollution.
Future regulatory challenges
Michael Best predicts that moving forward, both federal and state environmental regulators will need to modify their permitting approaches. Instead of relying on narrative prohibitions, permits must now contain specific, clearly defined pollution control measures. The ruling may also prompt challenges to existing permits that include “end-result” language.
