Politicians are wont to say that there are no Democratic potholes or Republican potholes. Alright, fair enough: But what about turds? What about turds … floating offshore?
Are there Republican floating turds or Democratic floating turds? You’re not going to believe this, but one could argue that, yes, there are. San Francisco, in fact, literally made a federal case out of this. And, lo and behold, we won!
Last week, San Francisco bested the Environmental Protection Agency in a case that worked its way all the way up to the United States Supreme Court. The city prevailed via a counterintuitive 5-4 grouping; Justice Amy Coney Barrett joined the three liberals, meaning that, for whatever reason, all the male justices favored San Francisco and all the female ones did not.
As you’d imagine regarding a regulatory case, there were a lot of ins, lot of outs, lot of what-have-yous. But, in the end, it all came down to floating turds. As in: The great heap of turds that San Francisco’s antiquated combined sewer system ejects offshore when overwhelmed with stormwater. That’s a sticky situation, but it gets worse: The city claims these turds were politically weaponized, because there really is a distinction between Republican and Democratic turds.
You may recall the 2019 incident in which President Donald Trump rage-tweeted about homeless people’s excrement and drug paraphernalia washing into the bay, and a lapdog at the EPA followed through by citing San Francisco for pollution. This, it seems, was the germ of the strange and terrible lawsuit in which San Francisco vanquished the EPA, with a who’s who of polluters lined up behind the city, and a who’s who of environmental groups lined up against it.
“I would bet that most San Franciscans don’t enjoy having untreated shit in their water,” says Supervisor Myrna Melgar, who authored a resolution last year urging the city to avoid handing the Supreme Court a cudgel to further batter the Clean Water Act. Her resolution passed but went unheeded.
So, here we are: “It makes me ashamed,” Melgar continued. “We’re sooooooooo progressive.”
But there was nothing progressive about the fines the city was racking up: San Francisco’s Supreme Court win negates proposed EPA penalties in the hundreds of millions of dollars and mandatory sewer system upgrades that would cost billions and billions. These are untenable directives and, for whatever reason, the city and President Joe Biden’s EPA could not come to a mutual agreement to avoid involving the Trump Supreme Court.
Heck, that’s unfortunate: Dave Owen, a professor specializing in environmental and water law at University of California Law, San Francisco, likened entrusting the corrupted and activist high court with an environmental matter to “bringing in the mafia to resolve a neighborhood dispute.”
It is, truly, a shame that the city and EPA could not stave off this eventuality. And now the Supreme Court has made us an offer we can’t refuse. Perhaps fittingly, considering the subject matter, nobody’s hands are clean.
As a result of the city’s victory, several paragraphs will be stricken from the treatise-sized permits governing its wastewater plants. At issue were broad, general clauses that, prior to Trump’s Twitter saber-rattling, had largely gone unenforced. Among them:
Neither the treatment nor the discharge of pollutants shall create pollution, contamination, or nuisance as defined by California Water Code Section 13050.
The broad clauses, like this, that San Francisco’s successful suit has invalidated are often included in the permits overseeing mining operations or chemical plants. While, God willing, we know most of what’s coming out of the city’s sewer pipes, that’s not the case with regards to washing acres of earth into rivers in a mountaintop mining operation or discharging byproducts from an industrial plant.
Broad clauses, environmental attorneys say, are a “backstop” against unforeseen water pollution. “And now that tool has been taken away,” says Nick Torrey, a senior attorney with the Southern Environmental Law Center in North Carolina. “This is going to make it much more difficult to enforce water-quality standards.”
Prior to this ruling, if an unanticipated environmental hazard was created by a mine or chemical plant, the EPA could quickly swoop in and mandate them to stop. But now that’s in doubt: If the specific substance isn’t noted in the permit, that power is no longer there. So, what’s going to happen? The EPA will have to make the permitting process more onerous on the front end, analyze every possible negative outcome, and get that into the permit. This would be a huge time-suck and time, of course, is money.
Or, the EPA could simply wash its hands of this kind of strenuous regulation and, as a result, do a crappier job of protecting the environment. Considering Trump’s push to gut the agency, this is hardly implausible.
“Look at the list of who filed the amicus briefs for the city,” says Torrey. Among them are the National Mining Association, National Association of Home Builders, and public wastewater and stormwater agencies. “It’s a laundry list of all the polluting industry trade groups. They all benefit from this.”
San Francisco is on a roll. Last year we handed Justice Neil Gorsuch the scalpel he needed to lacerate legal rulings preventing the rousting and criminal prosecution of homeless people who have nowhere else to go. And, now, we’ve done the same, even more proactively, on behalf of environmental villains. City Attorney David Chiu has been the most aggressive elected official in San Francisco regarding Trump’s authoritarian and anti-democratic moves. But he’s also lobbed these two fat pitches to Trump’s Supreme Court.
But you know what? It could be worse. Owen, the San Francisco law professor and water expert, worried last year that the Supreme Court could use the San Francisco case to eviscerate the Clean Water Act and mortally wound the EPA. While both have been weakened, neither has been undone.
In this decision, Owen did not see the breadcrumbs, “or sometimes whole loaves,” this court has sprinkled throughout its prior rulings to clue in polluting Hansels and Gretels on the path to further undoing any and all environmental regulations.
It also warrants mentioning that, by an 8-1 ruling with only Gorsuch dissenting, the Supreme Court denied one of San Francisco’s major arguments.
In a nutshell, San Francisco called for quantifiable limitations on its effluent; stuff you can measure. This, environmentalists argued, would do away with “narrative” criteria: stuff you can’t necessarily measure and may just see. That could be as simple as no visible turds or toilet paper, please.
The city has stated, explicitly, that it did not wish to do away with narrative criteria. But the Supreme Court’s ruling found that the city’s argument would’ve done just that: “San Francisco’s interpretation would … invalidate widely accepted narrative permit provisions …” reads Justice Samuel Alito’s decision. “It is telling that the City’s interpretation would lead to … drastic consequences that the City is unwilling to embrace.”
So, the outcome of this particular case was limited. But not because the city was measured but, rather, because San Francisco’s argument was too extreme for the Trump Supreme Court.
“If you have an argument against the EPA that’s so bad you can’t get Justice Alito on your side, that is saying something,” sums up Owen. “I think it’s pretty clear the Supreme Court understood the city was asking to get rid of narrative standards and rejected that. If the city wants to say they didn’t want to? That’s pretty rich.”
In the end, the consequences of this fight will depend on where you stand; the ramifications of a wealthy city’s actions will be felt by the less fortunate, elsewhere. Water, after all, flows downstream. And shit rolls downhill.
For the longest time (as in decades) old timer Ocean Beach surfers know not to surf OB 24 hours after a rain storm. You’ll get sick. Like the Seine.
I urge people to read the Supreme Court decision itself, because it is far less remarkable or extreme than is suggested here. As the opinion states: “[T]his case involves provisions that do not spell out what a permittee [SF] 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.”
So SF did everything the permit required it to do, and nothing in the opinion or briefing even suggests that SF has been negligent in operating its treatment systems. But despite that, in rare circumstances during extremely heavy rains, the sewers and sewer treatment plants are overwhelmed and untreated water is discharged. Not good, but once again, there is no suggestion that this is due to anything SF has done negligently. But Trump I decided in 2019 that SF should be fined hundreds of millions of dollars and must spend billions of dollars because – no matter what – no pollutant shall ever end up being discharged. The Clean Water Act could have said that is the standard, but it doesn’t. The EPA made up that standard. Imagine if a business followed every OSHA rule to the letter but due to some freak occurrence — say, a rare storm blew open a window and caused an employee to slip and fall — so OSHA shut the business down because “even if you follow all the rules, someone still was injured.” In a perfect world, nothing bad would ever happen. But that is not what the Clean Water Act (or pretty much any other law) requires. SF can still upgrade its plants to make any discharge less likely, and I hope it does. But the law does not require it to spend billions to meet an impossible standard that was made up.
“When a permit contains such requirements” is the point being made that you may be glossing over. They need to quantify limits on every last thing for every last permit now, or it’s ‘legal’ by default. That will add both eyeball hours and delays in permit remittance. As it says it could be worse, they could have gutted all enforcement power of EPA as some expected. The design of SF combined sewer and storm capacity is limited which renders the system deficient during storms. The obvious solution is to add capacity, at considerable expense yes, to avoid both discharges during storms and the fines that rightly SHOULD be levied when a flawed system that could be upgraded to compliance is failing and polluted waterways result, with both environmental and human activity impacts. Obviously Trump’s admin trying to punish SF for being SF is a side issue and we haven’t seen the last of that effort, but removing teeth from environmental enforcement regimes without seriously considering unintended impacts downstream is not great governance either.
Hi, I am familiar with wastewater treatment plant operations (but not a member of the SFPUC team). For a wastewater treatment plant, there is an expectation to treat certain products out of the influent in order to comply with its NPDES permit. Different plants have different methods for treatment, but they all generally get to a similar place. I really don’t believe it would be onerous for the EPA to make a list of specific effluent standards for this facility.
The real problem is the city replacing its combined sewer system with a segregated stormwater and sanitary system. Climate change will bring more extreme wet weather events and that system was not designed to handle those, so there will likely be more of these discharge events and eventually that will EPA list of effluent requirements will show up and SF won’t be able to handle it.
The point is the ruling is greater in scope than “this facility” and “effluent” right? You may be right about the overall capacity vs redesign issue, but capacity increases of 50-100% would stop many incidents in the meanwhile from escalating. It’s not infeasible, whereas changing from our current system to a totally new system may be exactly that under current conditions political and budgetary.
And think about it, this is _just_ for sewage treatment leaks of effluent and doesn’t even get into all the wonderful forever chemicals, microplastics, heavy metals, pharmaceuticals, fertilizers and pesticides, etc. We are drowning ourselves in all kinds of toxic crap that we don’t care to bother trying to keep out of our food web, and we can’t even agree how to regulate faeces now, the proverbial namesake of the cautionary environmental tale ‘everyone poops’. It’s going to be a sh!t world we leave behind for our kids.
Thank you San Francisco. Always telling us what to do. But not giving a s&@!$ about what you do to us
Lawyer here…and:
(1) the Biden administration and its epa was really, really out to lunch. It was clear that this was not going to be a win. But they for ego/stupidity/ etc kept going, rather than reaching an agreement. With the new trump administration incoming (which as the article states originally weaponized these general clauses) there was no way they could just sit back and let trump impose billions in penalties.
Once again we were screwed by a really dumb adminstration — biden’s.
(2) the homeless case was similar, but there it was the homeless advocacy groups. They pushed too far, and really hamstrung west coast cities, It was easy to see where it was going – an 8-1 ass kicking..
But the homeless advocates have as much political since as the people who advocate for “defund the police” or “paying for sex change operation of those in prisons and immigration detention” or everyone using LatinX and long discussions by everyone about their pronouns.
We (the democrats) will keep losing when a self-righteous, show how superior they are, progressive set gives the right wing all the ammo they need.
Sir or madam —
Separate and apart from your reasoning, the Grants Pass decision was 6-3 along ideological lines.
JE
You are right. Sotomayer’s dissent was jointed by Kagan and Jackson.
Still was a very predictable ass kicking…and perhaps the only time in the last several years. I have actually agreed with the conservatives on an issue.
“Once again we were screwed by a really dumb adminstration — biden’s.” -As long as you don’t look at the price of groceries, eggs, gasoline, the stock market, etc… absolutely Biden was the dumbest guy ever. I don’t think he even considered capitulating to Russia and destroying American GDP in his first 2 months. Senility maybe.
We actually have a San Francisco “Department of Environment” with a “mission” to enhance the quality of life for all San Franciscans!
Funded to the tune of $30 million.
Even more performative posturing from a city that specializes in it.
This particular issue seems to be about regulating the water quality at the discharge area. At Ocean Beach, the currents and tides help move and dilute the problem fast – way better than say, the waters of Mission Creek. When we get big rains (like the river due this week) the combined sewer system allows raw sewage / stormwater mixture to flow through a screen on the outfall pipes. SFPUC call this Primary Treatment discharge. I’d say it’s not safe for anyone or anything to swim in. Hopefully, next time, the two agencies can come to an agreement on upgrades and stay away from the courts – and rulings like this that may weaken good regulations.
“At Ocean Beach, the currents and tides help move and dilute the problem fast”
That’s not even true, it billows out at tidal shift and deposits right on OB.
So long as we have a combined sewage system, we’ll have raw sewage flowing to the bay and the ocean during large storms. Period.
A “combined sewage” system: All rainwater gets mixed in with raw sewage. This is an extremely difficult and expensive system to size. Ostensibly this is to handle pollutants on the roads (ie from cars leaking oil, spewing rubber and brake dust, decomposition of asphalt, etc). Two problems:
1. This in effect is another market failure in favor of cars: The cost of their pollution is borne by the city as a whole in over-sizing the sewer infrastructure to handle storms, instead of the more regular sewage.
2. The water that comes from the streets and off roofs is generally not in need of the same treatment as sewage (and vice versa). So the combined sewer has to both deal with all the plastic, grit and other road debris, and the raw sewage, for all of it mixed together.
Poor thing is afraid of cars, aww.
it’d be sad if it wasn’t so pathetic…
Wrong. Period. They can build holding stages.
I’d be curious to know more about the pursuit of this case by the City Attorney.
—“San Francisco is on a roll. Last year we handed Justice Neil Gorsuch the scalpel he needed to lacerate legal rulings preventing the rousting and criminal prosecution of homeless people who have nowhere else to go. And, now, we’ve done the same, even more proactively, on behalf of environmental villains. City Attorney David Chiu has been the most aggressive elected official in San Francisco regarding Trump’s authoritarian and antidemocratic moves. But he’s also lobbed these two fat pitches to Trump’s Supreme Court.”
Chiu is corrupt by any standard. Giving Breed a free pass to violate the Sunshine ordinance, he’s been the backroom player in getting her the job in the first place. Now he’s our SF City Attorney, ignoring the huge pot of boiling frogs to attend to a few well placed developers. If, as Chris Daly postulated, Bevan Dufty were a complete P.A.B. (sic), our esteemed corruption chasing lawyer Mr. Chiu would be a 5-ever-Bee. He has no interest in politics now that he has corrupting power without the voting intervals.
Sounds like offshore SF isn’t someplace to be for the foreseeable. Unless you’re in a boat, of course.