The U.S. Supreme Court (SCOTUS) issued a split 5-to-4 decision, narrowly deciding in favor of the city of San Francisco in San Francisco v. the EPA on March 4, 2025. The decision makes it more difficult for the EPA to regulate the discharge of raw sewage that occasionally occurs during heavy rains in the city and county of San Francisco.
“This case involves a challenge to ‘end-result’ requirements—permit provisions that do 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,” according to the SCOTUS ruling.
Background
The city of San Francisco operates two wastewater treatment facilities that process both wastewater and stormwater.
During periods of heavy precipitation, the combination of wastewater and stormwater may exceed the facilities’ capacity and can result in the discharge of untreated water, including raw sewage, into the Pacific Ocean or San Francisco Bay.
“For many years, San Francisco’s [National Pollutant Discharge Elimination System (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,” the ruling says. “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. 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.’
“San Francisco argued that the end-result requirements exceed EPA’s statutory authority, but the Ninth Circuit denied the city’s petition for review. That court held that [Section] 1311(b)(1)(C) [of the Clean Water Act (CWA)] authorizes EPA to impose ‘any’ limitations ensuring applicable water quality standards are satisfied in a receiving body of water.”
9th Circuit decision
The second permit condition, “Neither the treatment nor the discharge of pollutants shall create pollution, contamination, or nuisance as defined by the California Water Code section 13050,” was hotly contested in the 9th Circuit.
The EPA also retained a “reopener right” within this permit provision that allowed the Agency to “revise or modify this [permit] in accordance with the more stringent standards.”
“San Francisco argued the [CWA] restricts the EPA’s authority to set numeric pollutant limits to meet Pacific Ocean water quality standards,” notes law firm Frost Brown Todd LLP. “San Francisco claimed the CWA disallowed wide-ranging narrative permit prohibitions, which didn’t provide San Francisco clear guidance on necessary control measures to safeguard water quality.
“The Ninth Circuit rejected San Francisco’s arguments, citing Supreme Court precedent upholding the legality and enforcement of narrative provisions as a ‘backstop’ to specific numeric effluent limitations.”
The EPA administrative record included information revealing the resulting discharge of sewage due to heavy precipitation, which the 9th Circuit cited as data supporting the EPA decision for the new permit requirement, as well as the new requirement for San Francisco to adjust its long-term care plan (LTCP) to minimize overflow releases containing sewage.
Justice Daniel Collins wrote a dissenting opinion in this case in which he “argued that the CWA mandated the EPA to establish certain limits and controls for effluent to comply with state and federal water quality standards, citing CWA section 301(a)(1),” Frost Brown Todd continues. “The dissent argued that the CWA distinguished the ‘limitations’ that EPA must devise and impose on a permittee’s discharges and the overall ‘water quality standards’ governing the discharge to the receiving waters.”
The “narrative conditions challenged here effectively ignore this critical distinction by making the ultimate, overall ‘water quality standards’ themselves the applicable ‘limitation’ for an individual discharger,” the dissent says, according to the law firm.
SCOTUS analysis
Section 1251 of the CWA provides the EPA and authorized state agencies with the ability to issue permits that impose requirements on entities that wish to discharge “pollutants” (a broadly defined term) into waters of the United States.
Permits issued by these agencies include what the CWA calls “effluent limitations,” or provisions that specify the quantities of enumerated pollutants that may be discharged.
These permits often include detailed actions a discharger must take, which can include:
- Testing
- Recordkeeping
- Reporting requirements
- Requirements obligating a permittee to follow specified practices designed to reduce pollution
These basic “narrative” requirements weren’t in dispute in this case but are important to understand the context of this dispute.
Justice Samuel A. Alito delivered the opinion of the Court, which Justices John Roberts, Clarence Thomas, and Brett Kavanaugh joined. Justice Neil Gorsuch also joined the majority opinion on all but Part II. Justices Sonia Sotomayor, Elena Kagan, Amy Coney Barrett, and Ketanji Brown Jackson joined on Part II. Barrett filed an opinion dissenting in part, which Sotomayor, Kagan, and Jackson joined.
At dispute in this case are provisions within NPDES permits “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 SCOTUS decision says.
Permitted entities that follow each specific requirement within the conditions of their permits enjoy the benefits of a “permit shield,” which is a legal defense against enforcement measures like costly fines.
The majority opinion analysis began with language within CWA Section 1311(b)(1)(C), which requires a permit to contain, in addition to “effluent limitations,” “any more stringent limitation” that’s “necessary to meet” certain “water quality standards” that are imposed under state law “or any other federal law or regulation” and “any more stringent limitation” that’s “required to implement any applicable water quality standard established pursuant to this chapter.”
The Court interpreted this text as authorizing the EPA to set rules a permittee must follow to achieve the desired result – a specific degree of water quality.
In looking at the meaning of the word “limitation,” the majority opinion defined the term as a “restriction or restraint imposed from without (as by law[)].”
“A provision that tells a permittee that it must do certain specific things plainly qualifies as a limitation,” notes the ruling. “Such a provision imposes a restriction ‘from without.’ 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.”
The majority opinion also noted that the benefit of the permit shield for compliance with all the permit conditions “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.”
Additionally, the opinion noted the EPA didn’t include any provision to deal with problems that may arise when more than one permittee discharges into a body of water with substandard water quality.
Lastly, the ruling dismissed EPA concerns that the rejection of its interpretation of Section 1311(b)(1)(C) would have disruptive consequences for businesses that rely on “general permits.”
The ruling stated that “no such company has submitted a brief supporting the EPA’s interpretation. On the contrary, a brief filed on behalf of such companies urges us to reject the EPA’s position.”
The Sierra Club says San Francisco was supported by the National Mining Association, American Petroleum Institute, American Gas Association, and American Chemistry Council.
The EPA’s position was supported by the state of California, environmental groups, and other states.
Final ruling
The 5-to-4 decision ruled that the two challenged provisions exceed EPA authority.
“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.
“In sum, we hold that [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. If the EPA does what the CWA demands, water quality will not suffer.”
The dissent
Limits on discharges sometimes still don’t ensure water quality standards are met, Barrett wrote in her dissent, according to CBS News.
“The concern that the technology-based effluent limitations may fall short is on display in this case,” her dissent said, adding that “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.’”
Barrett’s partial dissent said she found the majority opinion “puzzling” because 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.’”
Environmental groups fear the worst due to the decision.
“SCOTUS’s decision ignores the basic reality of how water bodies and water pollution work, and could stymie the ability of the EPA to implement the [CWA], a bedrock environmental law that has kept water safe for the last 50 years,” said Sanjay Narayan, chief appellate counsel of the Sierra Club’s Environmental Law Program, in a statement. “Because the EPA is not allowed to include health-based standards when regulating water pollution, it’ll need to know everything about what might be discharged before a clean-water permit can be issued—making the permitting process delayed and incredibly expensive. The result is likely to be a new system where the public is regularly subjected to unsafe water quality.”
Others suggest the EPA’s focus should be centered on technology-based end-of-pipe effluent limitations.
“If water quality standards are difficult to reach, the regulator and permittee can still work to craft additional specific guidelines, as generic narrative guidelines may not provide the permittee with sufficient guidance on how to ensure CWA compliance and may not be tailored to the specific water body receiving the discharge,” Frost Brown Todd suggests.