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Notes -
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")
I didn't read the opinions, but I can wrap my head around the argument that it's reasonable for the EPA to make "any more stringent limitation that is necessary to meet the water-quality standards, to the effect that A) if you're purposefully polluting and B) there's a set limit for acceptable pollution, C) you need to stop purposefully polluting when the cumulative pollution approaches that set limit, D) else be penalized.
I can't wrap my mind around it.
For one, doing so would require the polluter to come up with the data that powers an empirical model to predicts the response of cumulative pollution that arises when they release X pollutant. That sounds, canonically, like the judgment that Congress expressly vested in the EPA. Asking the polluter to reproduce that expertise is basically unfair.
That's not how a combined storm/sewage system works. The city cannot "just stop" releasing effluent into the bay during a storm with the plant that it has. What they can do is, over the course of years, build more capacity to hold and treat that such that, on average, there is less overflow. But that has to be predicted and planned.
A productive discussion, especially given that the system was applying for a renewed license in 2019, would be for the EPA to make some estimates and require that the city build capacity to hold enough to meet the X^th percentile of rain. That would be a direct quantitative restriction of the sort Alito endorsed.
Maybe these two things come together: polluters (broadly speaking and in the specific case here) need predictability more than they need leniency. A defined target with specific requirements is, even if strict, far better than retroactive punishment based on results in a backwards-looking way. In the specific case, it's even more acute: the city cannot retroactively build more, nor can they tell citizens not to shit when it's raining.
Not only did I not read the decision, I was referring to general policy, not this particular series of events, so perhaps we're talking past each other. If the EPA didn't give SF any guidance on overall pollution limits, that's bad and unfair. What I'm saying is that I think it would be reasonable policy and a reasonable interpretation of the quoted statutory clause for the EPA to require polluters change their discharge methods, if overall pollution in their primary discharge environment exceeds a set limit. The alternative would be that the EPA couldn't restrict existing sources of pollution in response to overall pollution levels. Yes, this would require polluters to have backup plans, but a sewage system should have a lot of redundancy and excess capacity - that's civil engineering.
Well, with respect, that's the entire dispute between the EPA and SF.
To clarify, I surmise but want to confirm, this was intended to mean that, under those conditions, the EPA can require polluters to change their discharge methods going forwards.
If so, I agree wholeheartedly. The EPA can restrict existing sources of pollution, provided that it gives polluters a specific limit of pollutants to which they must comply in the future.
That is not what the EPA proposed to do here, which is why even San Francisco sued over it.
Yes, I was referring to the EPA needing/having the ability to restrict future permitted pollution by regulated actors, in response to observed overall pollution levels, as a condition of granting said permits to pollute. I should have been more clear I wasn't commenting on the specific case.
That would be an excellent way to run the EPA. Alas.
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