A new Supreme Court ruling widely criticized by environmentalists actually could lead to cleaner water flowing from the Inland Empire and Orange County into the ocean as soon as this year.
So says the lawyer for a nonprofit environmental group, Orange County Coastkeeper, that favors tougher pollution rules as a way to protect fresh and salt water.
“We’re leveraging (the ruling) as a positive thing,” said Sarah Spinuzzi, an environmental lawyer for Coastkeeper who last year wrote an amicus brief supporting what turned out to be the losing argument in the case in question, San Francisco v. the Environmental Protection Agency.
In the case, the results of which were made public Monday, March 3, the Supreme Court ruled 5-4 that some of the regulations imposed by the EPA against the city of San Francisco were too broad. Instead, the ruling said, the Clean Water Act of 1972 – a foundational law that sets water pollution rules around the country – requires that fines or punishments imposed on a polluter must be based on a specific link to the pollution being discharged.
That ruling was issued even though some basic facts in the case weren’t in dispute and seemed to be a clear violation of pollution laws. San Francisco has sent raw sewage into creeks that feed into San Francisco Bay, a result of the city’s antiquated sewage system being pushed beyond its limits during some of the bigger storms of recent winters.
Questions in the case centered on the EPA’s role: For instance, could it use the Clean Water Act as a basis for protecting the quality of San Francisco Bay and to penalize the polluter (San Francisco) that was fouling it?
The conservative majority said the EPA was within its bounds, but that its regulations couldn’t be based on the simple fact that water was polluted and a nearby polluter was responsible for it. Instead, it said, the Clean Water Act requires source polluters to be identified and penalized, when warranted, based on specific violations.
Justice Amy Coney Barrett, usually part of the six-member conservative majority, dissented and used language from the lawsuit to note that the pollution in question was egregious and that broad regulations are sometimes needed to stave off environmental harm.
“Discharges from components of San Francisco’s sewer system have allegedly led to serious breaches of the water quality standards, such as discoloration, scum and floating material, including toilet paper, in Mission Creek.”
Many environmentalists said this week that the Supreme Court’s decision sets a standard that isn’t practical.
They note that environmental regulators increasingly are under fire from conservative legislators, and that the EPA itself is being dismantled by layoffs and budget cuts. In that context, they argue, any ruling calling for tighter investigations – which require more manpower – will result in dirtier water.
The Sierra Club, in a prepared statement, said the ruling “ignores the basic reality of how water bodies and water pollution works, and could stymie the ability of the EPA to implement the Clean Water Act, a bedrock environmental law that has kept water safe for the last 50 years.”
But the ruling does spell out that regulations that track and measure specific pollutants are, in fact, required by law. That’s exactly what Spinuzzi and others at Orange County Coastkeeper have argued as they’ve participated in negotiations to create a new MS4 permit, a federally mandated document that sets limits on how much pollution can legally flow into storm drains and flood-control channels in Orange, Riverside and San Bernardino counties and, from there, into the Santa Ana River and the Pacific Ocean.
Coastkeeper has threatened legal action unless the next MS4 permit includes detailed ways to measure pollution and link any discharge to specific polluters. Garry Brown, founder of Orange County Coastkeeper and a player in the current permit negotiations, believes some agencies and businesses use vague pollution rules as a way to “run out the clock” when they’re cited for violations. Instead of fixing a specific problem, Brown argued, many will hire a consultant who, in turn, will take years to craft a potential solution, a process that’s often cheaper than paying for the cleanup.
Rules that might prevent that – by setting numerical limits on pollution and schedules for cleaning any discharge – are exactly what is spelled out in the new Supreme Court ruling.
“I don’t agree with everything they said,” Spinuzzi said. “But the Clean Water Act very clearly requires that you trace specific pollution to specific polluters. And, by reiterating that, the Supreme Court ruling is going to make our water cleaner.”
But tougher pollution rules also face other challenges.
Some counties and agencies have suggested that imposing tight standards in the next MS4 will be potentially devastating to taxpayers. Last year, a group of 17 cities and agencies in Riverside and San Bernardino counties produced a report saying tighter rules could cost their taxpayers $10.8 billion over the next decade.
But some officials who represent agencies and others in Orange County – down river from the Inland Empire – note that looser regulations lead to dirtier water, and that dirtier water also carries a financial cost for local businesses and homeowners.
On the same day that the Supreme Court ruling was made public, representatives from some of the 60 cities and public agencies in the three counties met in a previously scheduled conference to discuss the new permit.
Spinuzzi, who attended that meeting, said the Supreme Court ruling wasn’t discussed.
“Everybody still needed time for their lawyers to read the ruling and tell them what their opinion is,” Spinuzzi said.
But Spinuzzi believes they might be surprised when they read details of the ruling, saying it will lead to more detailed regulations in the local permit and possibly in other future clean water laws.
She also noted that it’s illegal in California to impose pollution rules that are more lax than the rules they replace, a so-called “no backsliding” requirement. That means the new MS4, which is likely to apply to local water quality over the next five to 15 years, will be tougher than the three regional permits, all issued in the early 2000s, that it will replace.
“I think this Supreme Court ruling will either have a positive effect or no effect at all. Either way, it won’t be bad for regulators,” Spinuzzi said.
“I see this as a win, especially in the context of negotiating this permit.”