The City of San Francisco finds itself in an odd position arguing a case before the Supreme Court that seeks to push back on the way the Environmental Protection Agency enforces the Clean Water Act.

At issue is how much "effluent," or mostly untreated wastewater, the City of San Francisco is allowed to discharge into the Pacific Ocean, particularly during rainstorms when the city's combined rainwater and sewage system becomes overwhelmed. We learned back in May that a battle between San Francisco and the EPA was headed to the Supreme Court after the Ninth Circuit had sided with the federal agency, after San Francisco had sued over what it says are too-vague guidelines over which it is now facing fines.

Deputy City Attorney Tara Steeley has taken the lead on the case, and made the arguments before the high court on Wednesday. As Steeley previously explained in a filing with the court in July, the EPA is acting like a head chef who hands a cook a recipe, and then complains when the recipe is followed that the soup is too salty.

Although the city is also complaining that the recipe itself isn't prescriptive enough, and it would like the EPA to clarify its guidelines so that the city may follow them.

As CNN explains this week, the trouble dates back to 2019, when the EPA added "narrative" guidelines that say the city's discharges may "not cause or contribute to a violation of any applicable water quality standard… for receiving waters."

A lawsuit was filed earlier this year that accuses San Francisco of "repeated and widespread failures to operate its two combined stormwater-sewer systems and sewage treatment plants in compliance with the law and its permits, and in a manner that keeps untreated sewage off the streets and beaches of San Francisco." But the city had already sued the EPA two years earlier over the guidelines, the Ninth Circuit ruled in favor of the EPA in July 2023, and now here we are.

The Ninth Circuit ruling said that the EPA has "broad authority to impose limitations necessary to ensure the discharger’s adherence to any applicable water quality standard." But the conservative-majority Supreme Court has spent the last two years chipping away at the power of federal agencies, including the EPA, and this case could have further, broad implications for the enforcement of the Clean Water Act.

SF Supervisor Myrna Melgar isn't very comfortable with that, as she tells CNN. "I’m very nervous about going to the court. We run the risk of having it apply to everybody," Melgar said.

But the city pushed forward with the suit, and as in the case of the Grants Pass case on homeless camping, the city has some strange bedfellows here in appealing to the conservatives for its own self-serving reasons.

As the New York Times reports, Justice Brett Kavanaugh and Justice Clarence Thomas seemed receptive to San Francisco's side in the case. And as law blog Mintz notes, Justice Samuel Alito will likely do everything in his power to kneecap the EPA, as he did writing for the majority in 2023's Sackett v. EPA. Alito did not seem particularly sympathetic to notion of "narrative standards" like the one the EPA issued for San Francisco.

Justice Amy Coney Barrett asked the EPA's attorney, Frederick Liu, whether the agency had ever levied significant fines on a city based on a narrative standard, and he said he wasn't aware of any such fines.

Liu further contended that San Francisco had not provided the EPA with details it requested about the city's combined wastewater system functions.

"Without that information, we’re basically flying blind as to how we’re going to tell exactly what San Francisco should do to protect water quality," Liu said, per the Times.

Justices Elena Kagan and Sonia Sotomayor did the majority of the questioning of Steeley on Wednesday, and they are both likely rule in favor of the EPA. But as many have noted, the Supreme Court's majority signaled its extreme stance on government agency power this past summer when it struck down the 40-year precedent of "Chevron deference," referring to a 1984 case that established that courts should defer to federal agency experts, rather than themselves or legislators, on issues of complex regulations and how they're applied.

So, chances are pretty good that this case will swing in SF's favor, and the EPA will be forced to clarify its guidelines — although this could mean a domino effect of other municipalities and corporations challenging the validity of Clean Water Act guidelines that they're expected to adhere to. That wasn't SF's goal with this suit, but that may indeed be the outcome.

Previously: San Francisco Argues In Supreme Court Lawsuit That It Isn't Discharging That Much Untreated Waste Into Ocean

Photo: Ian Hutchinson