Supreme Court appears split in San Francisco water lawsuit against Biden administration

The Supreme Court appeared split Wednesday on a challenge from the city of San Francisco to the U.S. Environmental Protection Agency over federal wastewater rules.

In its lawsuit against the federal agency, the city argued regulations around discharge of untreated sewage were unclear, including the potential price tag for violations, and that they could leave the city on the hook for factors beyond its control, such as the quality of water that enters the San Francisco Bay from elsewhere.

The high court agreed to hear the case after the 9th US Circuit Court of Appeals ruled against the city 2-1 last summer.

In oral arguments Tuesday, Tara Steeley, an attorney for the city, told the court that under the status quo, “they might as well have said: Do not violate the Clean Water Act. It doesn’t tell us anything.”

The court’s liberal minority appeared broadly skeptical of the city’s argument, with Justice Sonia Sotomayor pushing back on Steeley’s characterization that the city was expected to “shift on a dime.”

“No one’s asking you to shift on a dime. What they’re asking you to do is to become responsible for doing what’s necessary, not on a dime, but to take the steps necessary to control situations that develop,” Sotomayor said.

However, Chief Justice John Roberts and Justice Brett Kavanaugh appeared receptive to the city’s arguments.

“What the permit system was designed to do was give some notice to the different dischargers about what was going to be required of them, [but] your water quality system gives you complete discretion in which who’s going to bear the burden and who’s not,” Roberts said to Assistant to the Solicitor General Frederick Liu.

Kavanaugh, meanwhile, asked Liu if “you can go after an individual entity, like the City of San Francisco, based on the past when they didn’t know what the relevant limitation on them was and seek retroactively, without fairness, huge penalties, including criminal punishment, based on something that they didn’t know what they could discharge or not discharge.”

“You’re suing San Francisco separately for a lot of money, based on a standard that they had no idea [of], at least that’s the theory,” Kavanaugh added.

The court’s conservative supermajority has repeatedly issued rulings curtailing the authority of federal regulatory agencies, including in its most recent term, when it threw out the Chevron deference, which gave federal agencies broad discretion in interpreting statutes.