San Francisco v. EPA has the potential to impact administrative agencies’ ability to regulate and enforce regulations of the Clean Water Act (CWA) but also could negatively impact citizen suits. This case emphasizes how citizen suit litigation is frequently used to enforce the CWA in lieu of federal resources to do so.
Cities and towns all over the United States use combined sewer systems that collect sewage and stormwater runoff. Combined sewer overflows are just one of many issues the CWA regulates. The National Pollutants Discharge Elimination System (NPDES) permit program has been EPA’s discretionary tool under the CWA to protect water bodies since 1972. Narrative Water Quality Standards (NWQS) in NPDES permits are crucial in ensuring industry and municipal compliance with the CWA. While numeric standards set specific limits on pollutants like nitrogen or mercury, narrative standards provide a broader framework for maintaining the health of water bodies.
These qualitative guidelines focus on protecting the overall condition of water, such as against impairments to aquatic life or recreational activities. They can address pollutants or circumstantial stressors that are difficult to quantify. For industries and municipalities, narrative standards ensure that their activities don't contribute to water quality degradation in ways that more rigid numeric standards might overlook. For example, a narrative standard could require that discharges not cause “excessive algae growth,” which could occur due to nutrients entering the water, affecting aquatic ecosystems and drinking water quality. NWQS can play an indispensable role for EPA’s ability to enforce the CWA when the Agency does not have enough data to set numeric or quantitative standards in each permit.
Citizen suits are a critical tool for implementing environmental laws, allowing individuals to sue for enforcement of those laws when the government fails to do so. Various statutes authorize citizens to bring civil actions against violators of environmental laws or against administrative agencies, like the EPA, for failing to perform nondiscretionary duties, typically after first providing some advance notice to the government. See 42 U.S. section 7604. However, courts have often grappled with determining when the EPA's inaction becomes actionable, especially in the absence of specific deadlines for the agency's duties.
NPDES permit enforcement by the EPA and other delegated environmental agencies also relies on citizens to enforce permit requirements against municipalities and industries. It is no surprise that water quality issues can occur despite compliance with numeric effluent limitations set in NPDES permits. Additionally, changed conditions in waterbodies in a rapidly changing environment require more malleable standards like NWQS to ensure compliance with the CWA. Citizen groups have historically challenged discharges or practices that lead to violations of water quality, even if no specific pollutant limits are exceeded, further strengthening the role of citizens in safeguarding the environment.
In challenging a NPDES permit issued to it, the city of San Francisco and its amici argued that regulatory requirements were already so stringent that compliance is difficult to achieve. In contrast to citizen group advocates, the regulated community finds that these inherently ambiguous permit provisions in NPDES permits are not realistically achievable and create more litigious issues before the federal court system. However, NWQS are not responsible for a deluge of citizen suits on court dockets; indeed, only 10 citizen suits have advanced NWQS claims in the past year. Moreover, while NWQS present as “broad” requirements, they can be quite specific to water quality issues that cannot be determined by a numeric or quantitative requirement such as impacting turbidity of a waterbody.
The impact of the San Francisco v. EPA decision is still ambiguous. It will require creative legal arguments for plaintiffs and/or agencies to enforce the CWA. Litigation over what defines an “end result” requirement in CWA permits remains to be seen. It is evident that the decision “muddies” how waterbodies are protected by CWA permits moving forward.
Leading up to the Supreme Court’s decision in March of this year, EPA and its amici submitted that NWQS provide a strong “backstop” for numeric effluent limits in NPDES permits. As noted in the amicus brief, “it is often difficult, or even impossible, to determine all potential pollutant discharges at the time the permit is issued.” Id. at 23. Citizen organizations act as an indispensable tool to protect waterbodies under the CWA in lieu of agency enforcement.
EPA may not update permits for years or decades, allowing them to continue administratively. Where the Agency fails to act on violations, citizen organizations can fill that gap in enforcement. The citizen suit provision empowers communities to take legal action to protect local water resources, ensuring that industries and municipalities adhere to both the letter and intentions of the CWA.
Overall, the decision in San Francisco v. EPA will likely influence the future landscape of citizen suit litigation. Citizens have an uphill battle to determine their ability to hold polluters and the EPA accountable for violations of the CWA. As EPA and environmental advocates noted in briefing, NWQS integrate a successful tool to handle the real-world difficulties presented to the agency’s ability to update permits regularly based on rapidly changing conditions. Citizen organizations and EPA are the supportive tools designed to enforce the CWA in a dynamic, ever-changing environment of U.S. waterbodies.
