CITY AND COUNTY OF SAN FRANCISCO, CALIFORNIA v. ENVIRONMENTAL PROTECTION AGENCY
No. 23-753
SUPREME COURT OF THE UNITED STATES
March 4, 2025
604 U. S. ____ (2025)
OCTOBER TERM, 2024
Syllabus
NOTE: Whеre it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
CITY AND COUNTY OF SAN FRANCISCO, CALIFORNIA v. ENVIRONMENTAL PROTECTION AGENCY
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 23-753. Argued October 16, 2024—Decided March 4, 2025
Under the Clean Water Act (CWA),
This case involves a challenge to “end-result” requirements—permit provisions that dо not spell out what a permittee must do or refrain from doing but instead make a permittee responsible for the quality of the water in the body of water into which the permittee discharges pollutants. The City of San Francisco operates two combined wastewater treatment facilities that process both wastewater and stormwater. Combined Sewer Overflow (CSO) Control Policy, 59 Fed. Reg. 18689; 75 F. 4th 1074, 1082 (CA9). During periods of heavy precipitation, the combination of wastewater and stormwater may exceed the facility‘s capacity, and the result may be the discharge of untreated
For many years, San Francisco‘s NPDES permit for its Oceanside facility was renewed without controversy, but in 2019, the EPA issued a renewal permit that added two end-result requirements. 75 F. 4th, at 1084-1085. The first of these prohibits the facility from making any discharge that “contribute[s] to a violation of any applicable water quality standard” for receiving waters. Id., at 1085. The second provides that the City cannot perform any treatment or make any discharge that “create[s] pollution, contamination, or nuisance as defined by California Water Code section 13050.” Ibid. (internal quotation marks omitted). San Francisco argued that the end-result requirements exceed EPA‘s statutory authority, but the Ninth Circuit denied the city‘s petition for review. The court held that
Held: Section 1311(b)(1)(C) does not authorize the EPA to include “end-result” provisions in NPDES permits. Determining what steps a permittee must take to ensure that water quality standards are met is the EPA‘s responsibility, and Congress has given it the tools needed to make that determination. Pp. 7-19.
(a) Not all “limitations” under
(b) Section 1311(b)(1)(C) does not authorize permit requirements conditioning compliance on receiving water quality. The provision‘s text, structure, and context support this interpretation. Pp. 9-19.
(1) The terms “limitation,” “implement,” and “meet” in
(2) The pre-1972 Water Pollution Control Act (WPCA) contained a provision that allowed direct enforcement against a polluter if the quality of the water into which the polluter discharges pollutants failed to meet water quality standards. See Federal Water Pollution Control Act, ch. 758, §§1, 2(d)(1), 2(d)(4), 2(d)(7), 62 Stat. 1155, 1156-1157. But Congress deliberately omitted such provisions when overhauling the law in 1972. Instead, the CWA imposes “direct restrictions” on polluters rather than working backward from pollution to assign responsibility. EPA, 426 U. S., at 204. The Government‘s interpretation would undo what Congress plainly sought to achieve when it scrapped the WPCA‘s backward-looking approach. Pp. 12-14.
(3) Two features of the broader statutory scheme further support this conclusion. First, end-result requirements would negate the CWA‘s “permit shield” protecting compliant permittees from liability. Second, EPA‘s interpretation provides no mechanism for fairly allocating responsibility among multiple dischargers contributing to water quality violations. Pp. 14-16.
(c) The agency has adequate tools to obtain needed information from permittees without resorting to end-result requirements. Its reliance on the Combined Sewer Overflow Policy is misplaced as that policy authorizes narrative limitations but not end-result requirements. And concerns about disrupting general permits are unfounded given that narrative limitations remain available. Pp. 17-19.
75 F. 4th 1074, reversed and remanded.
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS and KAVANAUGH, JJ., joined, in which GORSUCH, J., joined as to all but Part II, and in which SOTOMAYOR, KAGAN, BARRETT, and JACKSON, JJ., joined as to Part II. BARRETT, J., filed an opinion dissenting in part, in which SOTOMAYOR, KAGAN, and JACKSON, JJ., joined.
NOTICE: This opinion is subject to formal revision before publication in the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, pio@supremecourt.gov, of any typographical or other formal errors.
SUPREME COURT OF THE UNITED STATES
No. 23-753
CITY AND COUNTY OF SAN FRANCISCO, CALIFORNIA, PETITIONER v. ENVIRONMENTAL PROTECTION AGENCY
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[March 4, 2025]
JUSTICE ALITO delivered the opinion of the Court.
Under the Clean Water Act (CWA), 86 Stat. 816,
None of these so-called narrative requirements is at issue here.
Instead, this case involves provisions that do not spell out what a permittee must do or refrain from doing; rather, they make a permittee responsible for the quality of the water in the body of water into which the permittee discharges pollutants. When a permit contains such requirements, 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. For convenience, we will call such provisions “end-result” requirements.
The permittee in this case is a wastewater treatment facility owned by San Francisco. For the past five years, the facility‘s permit has included two end-result requirements, and if those provisions are upheld, the City could be heavily penalized even though it was never put on notice that it was obligated to take any specific step other than those it undertook. San Francisco argues that the end-result provisions in its permit are not authorized by the CWA, and its position is supported by many other similarly situated cities, including New York, the District of Columbia, Boston, and Buffalo, as well as national and state associations whose members collectively “provide wastewater and stormwater services to the majority of [the people in this country whose homes are connected to sewers].”5
We hold that the two challenged provisions exceed the EPA‘s authority. The text and structure of thе 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. The EPA may itself determine what a facility should do to protect water quality,
and the Agency has ample tools to obtain whatever information it needs to make that determination. If the EPA does its work, our holding should have no adverse effect on water quality.
I
A
To understand the issue before us, it is helpful to take a brief look back at the history of federal water pollution legislation. For most of the Nation‘s history, the Federal Government played a secondary role in this field. See Sackett v. EPA, 598 U. S. 651, 659 (2023). In 1948, however, Congress passed the Federal Water Pollution Control Act (WPCA), ch. 758, 62 Stat. 1155, which represented a cautious expansion of federal authority. K. Murchison, Learning From More Than Five-and-a-Half Decades of Federal Water Pollution Control Legislation: Twenty Lessons for the Future, 32 Env. Affairs L. Rev. 527, 530–531 (2005). The WPCA reaffirmed the long-accepted principle that “controlling water pollution” was primarily a state responsibility, but it also declared that the pollution of certain interstate waters had become “a public nuisance” and was “subject to abatement in a suit” brought by the Attorney Generаl on behalf of the United States. §§1, 2(d)(1), 2(d)(4), 2(d)(7), 62 Stat. 1155-1157.
Over the next 24 years, the WPCA was amended numerous times,6 and the federal role gradually grew, but the basic structure of federal enforcement actions remained the same. The starting point was the identification of a body of water with substandard water quality. After that, federal
authorities had to work backward and prove that a particular entity should be held responsible for the problem.7 Both the original version of the 1948 Act and all amendments enacted before 1972 proved to be ineffective due in part to this backward-looking model. See EPA v. California ex rel. State Water Resources Control Bd., 426 U. S. 200, 202 (1976).
By 1972, the WPCA‘s inadequacy was apparent, and Congress made a fresh start. It amended the WPCA by deleting all its provisions and substituting what is now generally known as the Clean Water Act. The CWA jettisoned the WPCA‘s retrospective approach and aimed directly at the sources of pollution. A critical component of the CWA scheme is the National Pollutant Discharge Elimination System (NPDES), see id., at 204–205, which makes it unlawful to discharge pollutants into covered bodies of water unless authorized by permit. Permits issued under this program may contain several different types of provisions.
Some are known as “effluent limitations,” see
Defense Council, Inc. v. EPA, 859 F. 2d 156, 208 (CADC 1988) (per curiam). Instead, they permit only those discharges that may be made without unduly impairing water quality.
In addition to these effluent limitations, it is common for permits to include requirements that do not set numerical limitations on allowed discharges. One example, which is apparently common in so-called general permits, is a provision demanding that permittees follow certain “best practices” that aim to limit pollution.8
Under the NPDES system, permittees have a very strong incentive to comply with all permit terms. For one thing, the CWA gives the EPA a very big “stick.” Permittees that do not comply may be hit with enormous civil penalties and may face criminal prosecution for “knowing” or even “negligent” violations. See
B
The case now before us involves a particular type of public wastewater treatment, one that processes both wastewater (water that has been used in a home) and stormwater (rainwater that does not sink into the ground). Many major cities have such systems, and they present special problems. During periods of heavy precipitation, the combination of wastewater and stormwater may exceed the facility‘s treatment capacity, and the result may be the discharge of untreated water, including raw sewage. See Combined Sewer Overflow (CSO) Control Policy, 59 Fed. Reg.
18689 (1994); EPA, Office of Water, Combined Sewer Overflows: Guidance for Permit Writers, p. 1–1 (1995). This problematic feature of combined facilities was recognized long ago; installing a new system that handles stormwater and wastewater separately is enormously expensive.9
To address the problem of CSOs, the EPA adopted its CSO Control Policy, which requires municipalities with combined systems to take prescribed measures and to develop and implement a Long-Term Control Plan. 59 Fed. Rеg. 18691. The CSO Policy provides for a two-phase permitting process. Id., at 18696. During phase I, permits require municipalities to implement nine minimum controls and to develop a long-term plan. Then, during phase II, that plan must be implemented. Ibid. In 2000, Congress amended the CWA and gave the CSO Control Policy the force of a statute. See
C
The city of San Francisco operates two combined treatment facilities: the Bayside facility, which discharges into San Francisco Bay, and the Oceanside facility, which empties into the Pacific Ocean. The permit at issue in this dispute concerns only the Oceanside facility,10 which treats water from 250 miles of sewers and serves approximately 250,000 residents. 75 F. 4th 1074, 1082 (CA9 2023).
For many years, the Oceanside facility‘s NPDES permit was renewed without controversy, but in 2019, the two end-result requirements that San Francisco now challenges were added. Id., at 1084–1085. The first of these prohibits the facility from making any discharge that “contribute[s] to a violation of any applicable water quality standard” for receiving waters. Id., at 1085. The second provides that
the City cannot perform any treatment or make any discharge that “create[s] pollution, contamination, or nuisance as defined by California Water Code section 13050.” Ibid. (internal quotation marks omitted).
The California Regional Water Quality Control Board for the San Francisco Bay Region approved the final Oceanside NPDES permit, and the EPA did the same.11 Id., at 1088. San Francisco appealed to the EPA‘s Environmental Appeals Board (EAB), objecting to, among other things, the two new provisions just noted. City and Cty. of San Francisco, 18 E. A. D. 322, 325 (2020). The EAB rejected San Francisco‘s challenge, and the City then filed a petition for review in the Ninth Circuit under
We granted certiorari to decide whether the EPA can impose requirements like those at issue. 602 U. S. ___ (2024).
II
Contending that the Ninth Circuit misread
all “limitations” imposed under
Other provisions of the CWA support this conclusion by describing
These reasons convince us that San Francisco‘s argument is wrong, but if more were needed, it is telling that the City‘s interpretation would lead to either drastic consequences that the City is unwilling to embrace or a very loose
interpretation of the term “effluent limitation” that would undermine the City‘s argument. As noted earlier, it is common for permits to contain “narrative” provisions requiring permittees to do such things as following certain “best practices.” These provisions do not directly restrict the “quantities, rates, or concentration” of pollutants that a permittee may discharge, and therefore they do not fit easily within the definition of an “effluent limitation.” Nevertheless, the City acknowledges their legitimacy, see Brief for Petitioner 15, 33, n. 22, and if that is correct, it must follow either that (1)
These problems overwhelm any help that the City can derive from the fact that
III
In addition to the broad argument discussed above, San Francisco advances a narrower alternative, namely, that even if
standards.” Brief for Petitioner 19. We agree with this argument. As the City maintains, “[t]he text, structure, and pre- and post-enactment context” support this interpretation. Ibid.
A
We begin with the text of
We start with the term “limitation.” As used in the relevant context, a limitation is a “restriction or restraint imposed from without (as by law[)].” Webster‘s Third New International Dictionary 1312 (1976) (emphasis added). A provision that tells a permittee thаt it must do certain specific things plainly qualifies as a limitation. 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.”
We do not dispute that the term “limitation” is sometimes used in a looser sense, but our task is to ascertain what the term means in the specific context in question. And here,
our interpretation of the meaning of the term “limitation” in
The terms “implement” and “meet” point in the same direction. The implementation of an objective generally refers to the taking of actions that are designed “to give practical effect to and ensure of actual fulfillment by concrete meаsures.” Webster‘s Third New International Dictionary, at 1134. Section 1311(b)(1)(C) tells the EPA to impose requirements to “implement” water quality standards—that is, to “ensure” “by concrete measures” that they are “actual[ly]” “fulfill[ed].” Simply telling a permittee to ensure that the end result is reached is not a “concrete plan” for achieving the desired result. Such a directive simply states the desired result; it does not implement that result.
Section 1311(b)(1)(C)‘s other directive—that the EPA impose limitations that are “necessary to meet” certain water quality standards—is similar. The verb to “meet,” in the sense operative here, means “to comply with; fulfill; satisfy” or “to come into conformity with.” Random House Unabridged Dictionary 1195 (2d ed. 1987). Thus, a limitation that is “necessary to meet” an objective is most naturally understood to mean a provision that sets out actions that must be taken to achieve the objective.
In assessing what the directives in
it is helpful to consider the use of the relevant terms in everyday speech. Suppose a State requires that all schools “meet” certain standards of math proficiency, and suppose the principal of a school calls a faculty meeting and instructs the teachers to “implement” those standards. The principal‘s obvious expectation would be that the teachers would devise and “implement” a plan to make sure that the desired end is “met.” It is unlikely that the principal would be happy if the teachers simply told their students that a state math proficiency test would be administered and that they should make sure they passed. That would not constitute the implementation of the desired end, i.e., meeting the State‘s standard of math proficiency.
Attempting to counter this interpretation, the EPA stresses
B
The text of the CWA militates against the Government‘s interpretation of
Act anything remotely similar. Under these circumstances, the absence of a comparable provision in the CWA is telling.
This glaring void resulted from a deliberate and prominent policy choice. As recounted earlier, before 1972, the basic structure of federal enforcement efforts was a lawsuit seeking to hold a polluter accountable for contributing to what amounted to or was expressly termed a violation of water quality standards. Building on the enforcement model originally adopted in the 1948 Act, the 1965 amendments of the WPCA required the adoption of “water quality standards,” and they then provided that “violators” of these standards were subject to suit by the United States. 79 Stat. 907-909. That is where matters stood until 1972 when Congress again amended the WPCA by deleting its entire text and substituting what is now popularly called the CWA.
This overhaul of the WPCA continued to require the adoption of water standards,
This omission cannot be viewed as accidental or inconsequential. The repealed enforcement provision went to the heart of what Congress viewed as a major defect in the old scheme. As we have noted, the 1972 overhaul aimed to facilitate enforcement by “making it unnecessary to work backward from an overpolluted body of water to determine which point sources [were] responsible” and thus subject to suit. EPA v. California, 426 U. S., at 204. Instead, the amended WPCA sought to achieve “acceptable quality standards” by means of “direct restrictions” on polluters. Ibid. The Government‘s interpretation would undo what Congress plainly sought to achieve when it scrapped the
WPCA‘s backward-looking approach.12
C
It is a ““fundamental canon of statutory construction that the words of a stature must be read in their context and with a view to their place in the overall statutory scheme.“” Utility Air Regulatory Group v. EPA, 573 U. S. 302, 320 (2014) (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 133 (2000)). Thus, in construing
1
The first is the so-called “permit shield” provision,
Oral Arg. 16, and after substandard water quality is detected, it may take some time to devise and implement appropriate corrective measures. Indeed, there may be occasions (such as the multiple-discharger situation we discuss below, see infra this page and 16), when there is nothing a permittee can do to bring about a prompt correction. For these reasons, the potential civil penalties for noncompliance can mount up and reach enormous sums. In a pending suit against San Francisco regarding the Bayside facility, the penalties sought are $10 billion. See Tr. of Oral Arg. 102. In addition to all this, a permittee who is found to have acted “knowingly” or even “negligently” may be criminally prosecuted.
Because of the harsh penalties for violating the terms of a permit, the permit shield is invaluable. Because of it, a discharger that complies with all permit conditions can rest assured that it will not be penalized. But the benefit of this provision would be eviscerated if the EPA could impose a permit provision making the permittee responsible for any drop in water quality below the accepted standard. A permittee could do everything required by all the other permit terms. It could devise a careful plan for protecting water quality, and it could diligently implement that plan. But if, in the end, the quality of the water in its receiving waters dropped below the applicable water quality levels, it would face dire potential consequences. It is therefore exceedingly hard to reconcile the Government‘s interpretation of
2
One final structural feature cements the case against the EPA‘s interpretation: the absence of any provision dealing
with the problem that arises when more than one permittee discharges into a body of water with substandard water quality. As previously explained, it is hard to believe that the 1972 Congress used
The EPA‘s only response to this argument is to note that in this case the Oceanside facility is the only entity that discharges into the relevant area of the Pacific Ocean. But the multiple-discharger problem goes to the meaning of
IV
Before concluding, we briefly address three additional arguments advanced by the Government.
A
The EPA maintains that the imposition of end-result limitations is the best course of action when “the information necessary to develop additional ‘effluent limitations’ is unavailablе.” Brief for Respondent 41. And it complains that it should not bear the burden of determining what a permittee should do to protect water quality because a permittee is likely to have better access to necessary information and a superior understanding of the operation of its facility and the changes that could be made to provide further protection for water quality.
We are not moved by this argument. For one thing, it appears that the EPA and state permitting authorities have used end-result requirements routinely, not just when a permit holder has failed to provide necessary information. See In re Lowell, 18 E. A. D. 115, 176 (EAB 2020); App. to Pet. for Cert. 519. And in any event, the EPA possesses the expertise (which it regularly touts in litigation) and the resources necessary to determine what a permittee should do. It is also armed with ample tools to deal with situations in which a permittee is slow to provide needed information or is otherwise uncooperative. The EPA can set a schedule for the provision of information and can refuse to issue a permit until the permittee complies. If necessary, it can make use of its emergency powers. See
The EPA contends that Congress authorized the use of end-result requirements when it codified the Agеncy‘s CSO Policy in 1994, see
In any event, the phase I language to which the EPA points does not authorize the imposition of end-result requirements. The policy states that a phase I permit should require a permittee to “[c]omply with applicable [water quality standards] . . . expressed in the form of a narrative limitation.” 59 Fed. Reg. 18696 (emphasis added). Our decision does not rule out “narrative limitations.” “Limitations,” as we understand the term, see supra, at 10–11, are permitted under
Attempting to read more into the phase I language, the EPA cites guidance it issued in 1995, but Congress did not codify that guidance, and we are not obligated to accept administrative guidance that conflicts with the statutory language it purports to implement. See Loper Bright Enterprises v. Raimondo, 603 U. S. 369 (2024). We also note that other guidance issued by the EPA is arguably inconsistent. See EPA, Combined Sewer Overflows: Guidance for Permit Writers, at A-1 to A-7.
C
Finally, the EPA contends that the rejection of its intеrpretation of
In sum, we hold that
* * *
The judgment of the Ninth Circuit is reversed.
It is so ordered.
The Environmental Protection Agency issued San Francisco a permit allowing it to discharge pollutants from its combined sewer system into the Pacific Ocean. The permit, of course, does not give the city free rein, and among its conditions are prohibitions on discharges that contribute to a violation of applicable water quality standards. San Francisco challenges these conditions on the ground that EPA lacks statutory authority to impose them. The city is wrong. 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.”
Notwithstanding the straightforward statutory language, the Court sides with San Francisco. I join Part II of its opinion, which rightly rejects the city‘s primary argument. In Part III, however, the Court embraces an equally weak theory—that the permit‘s restrictions are not “limitations,” as that word is ordinarily used. The Court‘s analysis
I
A
Under the Clean Water Act, “the discharge of any pollutant by any person” is unlawful except as expressly authorized.
Second, under
B
As the Court explains, San Francisco operates a combined sewer system, which transports sewage and stormwater runoff via the same conduits. See ante, at 5–7. Such systems occasionally overflow in wet weather—and when they do, they discharge both stormwater and untreated sewage into waters potentially regulated by the Clean Water Act. 59 Fed. Reg. 18689 (1994). As relevant here, “combined sewer overflow” events from one component of San Francisco‘s sеwer system result in the discharge of pollutants into the Pacific Ocean via the Southwest Ocean Outfall, which is located within EPA‘s jurisdiction, 3.3 nautical miles off the coast of San Francisco. These discharges are presumptively unlawful under
The city‘s NPDES permit contains both the technology-based effluent limitations required by
The city‘s permit thus tracks the structure of
II
A
San Francisco dedicates almost all its briefing to the proposition that the receiving water limitations are unlawful because
The Court continues, however, with a theory largely of its own making. Whatever “any more stringent limitation” may mean, the Court says, it does not authorize EPA to direct permittees to comply with the water quality standards. This conclusion is puzzling. The entire function of
The answer, according to the Court, is that a restriction does not count as a “limitation” if the permittee must identify the steps necessary to comply with it. Ante, at 10. San Francisco‘s permit only authorizes discharges that do not degrade water quality below the applicable standard. It is up to the city, however, to formulate a plan to achieve that result. The city‘s plan, the Court asserts, is a “limitation” on its discharges, but the permit condition is not. See ibid. As best I can tell, the Court thinks that only the “direct source of restriction or restraint“—apparently, the most specific restriction—counts as a “limitation.” Ibid.
The Court offers nothing to substantiate this proposition, and it is wrong as a matter of ordinary English. It is commonplace for “limitations” to state “that a particular end result must be achieved and that it is up to the [recipient] to figure out what it should do.” Ibid. For example, a company could impose spending “limitations” by requiring each branch to spend no more than its allotted budget, while still leaving branch managers flexibility to determine how to allocate those funds. A doctor could impоse a “limitation” on
In this context, “limitation” is simply a synonym for “[a] restrictive condition.” Funk & Wagnalls New Standard Dictionary of the English Language 1437 (1952). And conditions can be stated at many levels of generality—including in terms of end results. A college may condition a scholarship on the student‘s maintenance of a minimum GPA. A homeowner may condition payment for a new roof on the contractor‘s satisfaction of industry standards. An employer may condition job perks on the employee‘s performance. In each example, the condition is a limitation on a benefit or payment. There are strings attached.
The Court also misconstrues
Nor does the phrase “required to implement” help the Court. “Implement,” the Court says, generally means “‘to give practical effect to and ensure of actual fulfillment by concrete measures.‘” Ante, at 11. That is true but incomplete. The full definition reads: “to carry out: ACCOMPLISH, FULFILL, . . . esp.: to give practical effect to and ensure of
Regardless, the receiving water limitations “implement” the water quality standards in both the broad and narrow senses of the word. They are required to “carry out[,] accomplish, [or] fulfill” the standards: When effluent limitations fall short, discharges from the city‘s combined sewer system will otherwise degrade water quality below the applicable standard. Ibid. (capitalization altered). And the limitations are “concrete measures,” ibid., because they are the means by which EPA “implement[s] any applicable water quality standard,”
There is no getting around it: The receiving water limitations are “limitations.” If they are vague or unreasonable, they are vulnerable to challenge on one or both of those grounds. See, e.g., Natural Resources Defense Council v. EPA, 808 F. 3d 556, 578 (CA2 2015) (invalidating a receiving water limitation as arbitrary and capricious). But even a vague or unreasonable limitation is still a “limitation.”
B
With the text of
1
As for the statutory history: Advancing a specific theory of the congressional intent behind the Clean Water Act, the Court contends that EPA‘s interpretation would revive the
Of course, no theory of “what Congress plainly sought to achieve,” ante, at 13–14, could justify an implausible interpretation of
Under the old system, the United States could bring abatement actions only after the pollution had already occurred. See
Congress chose a different regulatory model when it adopted the Act in 1972. The Act renders all discharges presumptively unlawful. Then, under the current ex ante permitting regime, EPA authorizes only those discharges that comply with the Act. Should a permittee fail to comply with the terms of its permit, EPA has broad authority to sue. See
The receiving water limitations imposed under
Furthermore, the receiving water limitations operate within the broader context of the Act‘s permitting regime. These permits impose a prospective requirement on permittees to comply with permit conditions. Under the old regime, a discharger could take an approach of “pollute first
2
The Court also claims that the receiving water limitations are inconsistent with two features of the “broader statutory scheme.” Ante, at 14–16. First, it contends that the receiving water limitations are at odds with the permit shield provision because violations of the permit condition (and the attendant liability) are hard to predict. Ante, at 14–15. Second, it argues that the Clean Water Act is silent about the problem of multiple dischargers into the same body of water—and if the Act allowed EPA to condition a permit on maintaining water quality standards, the Court says, it surely would have spelled out how to deal with such an obvious complication. Ante, at 15–16. Both of these arguments boil down to the Court‘s concern that receiving water limitations might be unfair to permittees. In some circumstances, they might be. But any unfairness should be addressed through arbitrary-and-capricious challenges—not a statutory rewrite.
Start with the permit shield provision. Under
The permit shield provision, however, serves the specific role of immunizing pеrmittees that comply with a permit. See
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. But again, that concern goes to the question whether a particular receiving water limitation is rational. If a permittee cannot reasonably determine how to comply with a receiving water limitation, then the permit condition may be invalidated as arbitrary and capricious. (In fact, San Francisco made arbitrary-and-capricious arguments below, but the Ninth Circuit rejected them; the city did not seek this Court‘s review of that issue. See 75 F. 4th 1074, 1092–1093 (2023).) And as EPA acknowledged at oral argument, the Agency “may not impose limitations of any kind that are unconstitutionally vague.” Tr. of Oral Arg. 51. These concerns do not speak to the relevant question here, which is whether receiving water limitations comport with the Act.
The Court is also wrong to suggest that receiving water limitations are categorically impermissible because there may be multiple dischargers into one body of water in some circumstances. See ante, at 15–16. It makes little sense to say that an agency always lacks authority to take a certain action just because the action would be unreasonable in some scenarios. And as the Court itself recognizes, there is
3
Finally, the Court downplays the valuable uses of receiving water limitations. To begin, EPA imposes such limitations when the Agency “lacks the information necessary to develop more tailored limitations.” Tr. of Oral Arg. 51. That is the case here: San Francisco has cоnsistently failed to update its Long-Term Control Plan for managing combined sewer overflows. See 75 F. 4th, at 1095 (observing that San Francisco has not updated its plan since 1991). By imposing receiving water limitations, EPA was nevertheless able to issue a permit to San Francisco while complying with the Clean Water Act.
The Court does not explain what other course of action EPA could take. Instead, it states, without citation, that “EPA possesses the expertise . . . and the resources necessary to determine what a permittee should do.” Ante, at 17. This bare assertion simply ignores the obvious problem—how is EPA expected to deploy its expertise when it lacks the basic information necessary to make a decision? The Court also suggests that the Agency could refuse to issue a permit until the applicant provides the necessary information. Ibid. But this gives the game away: The entire point of EPA‘s argument is that it is preferable for EPA to impose broadly worded conditions in its permits than to deny permits altogether and potentially shut down San Francisco‘s sewer system. Nor can EPA simply “make use of its emergency powers” when permittees fail to provide necessary information. Ibid. Such powers are available
Receiving water limitations are also useful when EPA issues general permits to broad categories of dischargers (such as for construction projects). See South Fla. Water Management Dist. v. Miccosukee Tribe, 541 U. S. 95, 108, n. (2004) (observing that such “permits greatly reduce administrative burden by authorizing discharges from a category of point sources within a specified geographic area“). In lieu of individualized and prescriptive permitting conditions—which would take time to craft and with which small businesses might have difficulty complying—EPA instead allows the permittee to proceed under more general language. EPA can therefore issue the permit quickly and give responsible permittees flexibility to choose how to comply with the permit.
After today, the alternative for entities seeking a general permit is not for EPA to issue the permit without the
The Court dismisses this concern, noting that “no
* * *
Receiving water limitations are not categorically inconsistent with the Clean Water Act. Because the Court holds otherwise, I respectfully dissent in part.