The U.S. Supreme Court begins its 2024 session Oct. 7 with a docket featuring cases that could have far-reaching impacts on construction—including San Francisco v. EPA, with oral arguments set for Oct. 16. Justices will consider whether National Pollutant Discharge Elimination System permits can be enforced under the federal Clean Water Act if they include generic, rather than specific, language on requirements for treated wastewater discharge into the ocean.
The case pits numerous municipal water-sector utilities, construction industry associations and other trade groups against the U.S. Environmental Protection Agency. The City and County of San Francisco petitioned the high court to review the case after a 2023 decision by the U.S appeals court in that city rejected the San Francisco Public Utility Commission's arguments that language in its new permit was so vague that the utility could face penalties for failing to understand what the requirements were.
Amanda Aspatore, general counsel for the National Association of Clean Water Agencies, which filed a friend-of-the-court brief supporting the commission, says Clean Water Act permits must provide clear guidance about what can and cannot be safely discharged into U.S. waters.
“Regulatory compliance should not be a moving target,” Aspatore said in an email to ENR. “At stake in this case is the ability of utilities to effectively and efficiently invest public dollars to achieve the best environmental outcomes for the communities they serve, and to protect financially overburdened ratepayers from unnecessary costs associated with permitting uncertainty.”
In a combined legal brief, the National Association of Home Builders, Associated General Contractors of America and American Road and Transportation Builders Association wrote: “Generic narrative provisions place permittees in a vulnerable position of not knowing up front what is required of them to comply with their permit, at risk of being held liable for discharging even one molecule of a certain pollutant, regardless of the actual condition of the receiving water." The group said this "harkens back to a permitting program that this Court and Congress found untenable.”
In its petition, however, EPA contends that the language at issue, “Discharge shall not cause or contribute to a violation of any applicable water quality standard” was intended as a backstop for other requirements spelled out in the permitting language with enough specificity to be clear on what is required to comply.
Project Reviews, Approvals Under Scrutiny
Later in the term, the nation’s top court will hear arguments in a National Environmental Policy Act (NEPA) case, Seven County Coalition v. Eagle County Colorado, to decide whether agencies without regulatory authority can require additional project environmental impact analyses.
The federal appeals court in Washington, D.C. ruled in August 2023 that the Surface Transportation Board could not avoid conducting environmental reviews on a planned new rail line in Utah “on the grounds that it lacks authority to prevent, control, or mitigate” environmental effects that could potentially occur, which in this case is the rail line’s potential impacts on oil wells and refineries.
AGC of America General Counsel Leah Pilconis says the group and others oppose what they claim is regulatory overreach.
“We’re really pushing back when we think that federal regulations that have huge costs and impacts for the business of construction and are not authorized by statute, [and] agencies have been filling in the blanks where the statues are ambiguous or silent,” she says.
The high court also agreed to decide whether the U.S. Nuclear Regulatory Commission has authority to license a private firm to build a temporary offsite storage facility for spent nuclear power plant fuel after a lower U.S. appellate court ruling said it did not. The high court review follows appeals by the Biden Administration and the joint venture firm that was awarded an agency license for an estrimated $350-million facility in western Texas.
That state and oil industry groups, challenged the license approved in 2021 for Interim Storage Partners, made up of Orano USA and Dallas-based Waste Control Specialists. A license for the first $230-million phase of a waste storage site in New Mexico proposed by Holtec International also is part of the case. Two federal appeals courts rejected lawsuits against the licenses, but the court in New Orleans said the commission lacked authority under federal law to issue them,
Methane Rule in Force, for Now
But in an unexpected move in a requested emergency action, justices on Oct. 4 refused to weigh legal pleas by several Republican-led states, oil and gas companies and trade groups to block EPA rules from taking effect to regulate methane emissions from mostly oil and gas facilities and to curb emissions of mercury air pollutants from coal-fired power plants while challenges to those proceed in the Washington, D.C. federal appeals court.
The methane rule became effective last year and the mercury rule in May.
David Doniger, a senior attorney with the Natural Resources Defense Council, said the pause does not end the ongoing litigation challenging the rule. "We’ll now join EPA in defending these standards. But the decision today is a key sign that EPA retains the ability to address climate pollution under the Clean Air Act,” he said in a statement.
But ssid Jim Matheson, CEO of the National Rural Electric Cooperative Association, in a statement, the mercury rule implementation cost would force some power plants to close. “This EPA rule is unlawful, unworkable and poses a serious threat to electric reliability,” he said.
