Only a few readers of SCOTUS Today are lawyers who are professionally occupied with environmental matters.
However, almost all of my readers are constantly occupied with administrative law matters, governed in the post-Chevron world by questions of whether Congress has delegated power to administrative agencies and—to the extent that it has—how legislative text should be read or interpreted.
Those issues are at the heart of today's decision in City and County of San Francisco v. Environmental Protection Agency.
Under the Clean Water Act (CWA), 33 U. S. C. §§ 1151, et seq., the Environmental Protection Agency (EPA) and authorized state agencies issue permits that impose requirements on entities that wish to discharge “pollutants” into U.S. waters.
The CWA regulatory scheme encompasses the National Pollutant Discharge Elimination System (NPDES), which makes it unlawful to discharge pollutants into covered bodies of water unless authorized by permit.
In a victory for San Francisco, Justice Alito, writing for a 5-4 majority, rejected the EPA’s “end result” sewage permits issued under the CWA. The permits focus on water quality instead of outlining specific requirements to prevent pollution. San Francisco had challenged nonspecific or “narrative” wastewater permits issued by the EPA to protect surface water quality. The "end result" terminology was created by the Court's majority, and, in Alito's words, "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.”
According to this wording, a permittee like San Francisco could satisfy every specific requirement set forth in the permit but “may nevertheless face crushing penalties if the quality of the water in its receiving waters falls below the applicable standards." Thus, the majority held that "end result” permits exceed the authority designated in the CWA. Justice Alito was joined by the Chief Justice and Justices Thomas, Kavanaugh, and in part by Justice Gorsuch. Interestingly, Justice Barrett was joined by Justices Kagan, Sotomayor, and Jackson in a partial dissent.
Both the essential reasoning of the Court and its conclusion could be stated succinctly. However, Justice Alito wrote for 20 pages and Justice Barrett wrote for 14. The reason why is that both the majority and partial dissenters were focused on text and context, which they parsed in intensive detail.
Contrasting legislative "limitations" or "restrictions" that are imposed from "without" (i.e., the legislature) with those whose source impermissibly comes from "within" (i.e., are to be imposed by the permittee itself), the Court defined its obligation as ascertaining what legislative terms mean in their specific context.
One can make light of that detailed exercise as the product of a linguistics laboratory. However, one recalls yet again Justice Kagan's pronouncement (somewhat later rescinded) that "we are all textualists now." And, at least today, everyone was just that, though they didn't all see text in the same way.
Ultimately, City and County of San Francisco goes down as yet another opinion by a mostly conservative court, limiting agency authority by a narrow and literal reading of text rather than delving into questions of legislative intent and broad policy assessments.
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