The Supreme Court battle that could make your SF water bill skyrocket

In bizarro political news, lawyers for San Francisco were in front of the Supreme Court on Wednesday over a lawsuit the city filed against the U.S. Environmental Protection Agency. 

At issue is whether the regulator can hold the city generally responsible for overall water quality, rather than specific restrictions on discharged pollutants.

The arguments rest on complex legal jargon — the opening and responding briefs alone run more than 150 pages — but the case could have serious implications for San Francisco residents. 

City Attorney David Chiu has been leading the effort, arguing that if San Francisco doesn’t win, it may need to spend $10 billion in capital improvements that would have a “negligible impact” on water quality but serious effects on residents’ wallets. 

According to Chiu, ratepayers could see their water and sewage bills increase from around $850 annually to nearly $9,000, a change that could throw thousands into poverty. 

Here’s what you need to know about the case.

San Francisco has been a champion of some environmental regulations, but this specific legal fight concerns a small portion of the language in permits issued by the EPA that allow the city to discharge its wastewater into the bay and the Pacific Ocean. 

The permits prohibit discharges that “cause or contribute to a violation of any water quality standard” as well as the creation of any “pollution, contamination, or nuisance” as defined by California law. 

The provisions in question are called “generic prohibitions” because they don’t specify limits on sewage discharge. San Francisco is arguing that these are too vague and put the city in a difficult position that leaves it vulnerable to private lawsuits and continual enforcement action by the EPA. 

As Dennis Herrera, the general manager for San Francisco’s Public Utilities Commission, put it: “The EPA is basically saying, ‘You can’t pollute too much, but we won’t tell you what too much is until after you’ve already done it.’ That’s untenable.”

First, we have to examine how the city’s sewer discharge works. San Francisco operates a combined stormwater and sewer system that treats both sources of water before discharging it out of the Oceanside Plant by Lake Merced and the Southeast Plant in the Bayview.

During heavy rain, the system can become overloaded and release untreated water into the ocean or the bay. The EPA has repeatedly ordered San Francisco to reduce this overflow, saying there are examples of sewage flooding the streets and pollutants like copper, zinc, and ammonia ending up in the discharge.

The EPA and environmental groups have in the past filed lawsuits against San Francisco for these sewage discharges. Most recently, the EPA in May sued the city in federal court over “its repeated and widespread failures” to operate treatment plants in compliance with the permits. The city faces potential civil penalties of more than $66,000 per day for each violation.

San Francisco is arguing that the EPA’s policy overreaches from its regulatory authority under the Clean Water Act, which allows the regulator to impose limitations on pollutants rather than prohibitions on overall water quality.

Additionally, the city takes issue with how the EPA measures compliance, using the quality of receiving waters (the bay or the ocean) rather than tracking what discharge plants are actually releasing. They hold that this could make the city responsible for water quality issues it had no part in creating.

The regulator argues (big surprise) that it does have the legal authority to impose these generic prohibitions, which it says are necessary to control overall water quality.

The agency’s interpretation of the Clean Water Act allows for any limitation necessary to meet water quality standards. Narrative standards rather than simple effluent limitations can be helpful, the EPA argues.

Since the case has major implications for local governments, several other cities — including New York, Washington, and Boston — and water utilities joined an amicus brief in support of San Francisco’s argument. San Francisco has also found support from trade groups like the National Mining Association, American Farm Bureau Federation, and American Fuel & Petrochemical Manufacturers.

Chiu has argued that to meet the existing standards as outlined by the EPA, there would need to be an estimated $10.6 billion in capital projects. That would balloon average annual sewage and water bills to nearly $9,000 by 2039, according to an analysis by the Public Utilities Commission. 

Chiu said that’s a staggering bill to pay, particularly when these types of discharges happen 10 times a year or less. Federal government officials have argued that the sewage system is failing and needs upgrades.

During oral arguments, the justices appeared to be split along typical ideological lines. Chief Justice John Roberts and Justice Brett Kavanaugh, both conservatives, indicated support for San Francisco’s arguments, while liberal Justice Sonia Sotomayor appeared to see merit in the EPA’s interpretation of the Clean Water Act. There seemed to be support for a compromise measure in which the EPA could use “generic prohibitions” after exhausting efforts to get information from the relevant officials. 

What could possibly be ironic about San Francisco appealing to a conservative Supreme Court to roll back regulatory standards?