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PaperclipPerfector  1mo ago (text post)   35086 thread views

Culture War Roundup for the week of March 3, 2025

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Tuesday's Supreme Court opinion bears a surprising resemblance to the environmental rigmarole that I described in my previous posts (1 2 3).

  • Scenario 1: The state DEP (Department of Environmental Protection) gives to the state DOT (Department of Transportation) a permit saying that DOT can't pave near floodways, because that might cause flooding. DOT obeys the paving restriction. Even if flooding occurs later on (due to the actions of some entity other than DOT, or due to changes in precipitation patterns), DOT cannot be punished by DEP for that flooding, because it obeyed the restrictions of the permit. (I'm not quite sure what form such punishment would actually take. Are different arms of the same government allowed to impose fines on each other?)

  • Scenario 2: DEP gives to DOT a permit saying that (1) DOT can't pave near floodways, because that might cause flooding, and (2), if flooding occurs, DOT will be punished. DOT obeys the paving restriction. If flooding occurs later on (due to the actions of some entity other than DOT, or due to changes in precipitation patterns), DOT can be punished by DEP for that flooding, even though it did nothing wrong.

Scenario 2 sounds ridiculous, right? Well, keep reading.

  • Scenario 3: The federal EPA (Environmental Protection Administration) gives to San Francisco a permit saying that SF can't discharge untreated sewage into the ocean, because that might cause the ocean to become polluted. SF obeys the discharge restriction. Even if the ocean becomes polluted later on (due to the actions of some entity other than SF, or due to changes in ocean currents), SF cannot be punished by EPA for that pollution, because it obeyed the restrictions of the permit.

  • Scenario 4: EPA gives to San Francisco a permit saying that (1) SF can't discharge untreated sewage into the ocean, because that might cause the ocean to become polluted, and (2), if the ocean becomes polluted, SF will be punished. SF obeys the discharge restriction. If the ocean becomes polluted later on (due to the actions of some entity other than SF, or due to changes in ocean currents), SF can be punished by EPA for that pollution, in the amount of multiple billions of dollars, even though it did nothing wrong.

The Supreme Court now has ruled, by a bare majority of five to four, that the Clean Water Act does not authorize the EPA to issue the permit that is described in scenario 4. More specifically:

  • The text of the Clean Water Act passed by Congress says that a permit can contain, not just "effluent limitations", but also "any more stringent limitation that is necessary to meet the water-quality standards". "Effluent limitations" obviously permits scenario 3. The question before the Supreme Court is whether "any more stringent limitation" permits scenario 4.

  • The five-justice majority decided that, in this context, when Congress wrote "limitation" into the Clean Water Act, it meant that the EPA needed to tell San Francisco specifically what to do in order to avoid penalties (e. g., "your discharge into the ocean must not be polluting"), rather than just vaguely gesturing (e. g., "the ocean must not become polluted while you are discharging into it").

  • The four-justice minority disagrees with this assessment, and thinks that the word "limitation", regardless of context, can permit the EPA to make San Francisco responsible for the water quality of the ocean, rather than just for the water quality of what it discharges into the ocean. Direct quote: "A doctor could impose a 'limitation' on a patient's diet by telling the patient that she must lose 20 pounds over the next six months, even if the doctor does not prescribe a specific diet and exercise regimen. 'Limitations' can be general as well as specific, and general limitations can call for more specific ones."

IMO, legally the argument could go either way, but practically scenario 4 obviously is unfair and the majority's decision makes a heck of a lot more sense.

(I have put this comment in the culture-war thread because of articles like this one: "Supreme Court Rules the Clean Water Act Doesn't Actually Require That Water Be Clean")

This throwaway account is constrained to comment only on matters that are related to civil engineering.

Which account do I have to ping to get your opinions on law and politics?

This throwaway account may lose its reason for its own separate existence in a few years. Until that time, however, its existence will remain separate.

Don't worry JD your secret is safe with us.

Drats, foiled again!

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