05.30.2024 0

Supreme Court Takes On EPA’s ‘We’ll Tell You Later’ Refusal To Define Water Pollution Standards

By Rick Manning

Imagine that a federal agency threatened to fine a local government for excessive pollution without revealing to that or any other state or local government what standard they needed to meet to avoid running afoul of the law?

It would be like having a speed limit sign posted on the road without telling drivers how fast or slow they could drive.

Yet that is exactly what the ever-repugnant Environmental Protection Agency has done with a waste water discharge petition rule, which doesn’t tell localities what is actually a legally allowed level of pollutants.

Incredibly, it is the City and County of San Francisco, California that is challenging the rule for failure to provide specifics so they know how to comply, and the Supreme Court has agreed to hear the case.

While most people might think this is just another boring legal case, the truth is this vague rule impacts everyone who lives in a town, city or county with public water and sewer.

Municipal water and sewer systems are continually being updated to meet ever tightening state and federal pollution standards. But these improvements are expensive with much of the additional cost being tacked onto people’s water bills.

Even the most aggressive municipalities seeking to use the latest technologies find themselves always behind the curve as infinitesimal changes in standards can force massive new updated costs, often paid for by new borrowing through municipal bonds, even as the old bonds have not been paid off. Leaving water users footing ever increasing costs and little understanding why the water that was affordable five years ago is now a budget problem.

In the case of San Francisco, the City and County have been pouring money into the latest technology to limit polluting the San Francisco Bay. Yet, even this most liberal enclave recognizes that there needs to be objective standards so they can plan their spending and control their constituent’s bills.

The Environmental Protection Agency disagrees, refusing to provide a finish line, so water districts can plan to meet it. 

Instead, the EPA clings to a “whatever we decide this week” standard creating the ability to fine municipalities for polluting without defining what polluting is.  I guess pollution is a lot like pornography as the EPA will know it when they see it.

As the Supreme Court takes on this seemingly open and shut case of regulatory clarity, the EPA should beware. This is the same Supreme Court which found in West Virginia v. EPA that the agency had expanded its regulatory regime far beyond Congressional intent putting virtually every one of their regulations under legal scrutiny.

In San Francisco v. EPA, the Supreme Court will have the chance to make a hard and fast rule about regulatory clarity and perhaps require that regulators be restrained to standards which are actually achievable, available and cost-effective. 

If so, the intransigence and arrogance of the Biden EPA will have done the nation a great service by restricting all federal agencies from using the coercive fining power to impose standards which don’t exist in law.  What a concept.

Rick Manning is the President of Americans for Limited Government.

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