Most people, it is safe to say, prefer that America’s lakes, rivers, and oceans are not chock full of raw sewage. Indeed, that’s why, when it passed the Clean Water Act, Congress required the Environmental Protection Agency to regulate pollutants like raw sewage and ensure water quality standards are met.
Most people, however, are not on the Supreme Court of the United States, where five conservative appointees just made it easier to dump overflow poop into the water.
You can thank San Francisco for this result. The Clean Water Act makes it presumptively illegal to discharge pollutants into the waters of the United States. However, entities can obtain permits that allow for some level of discharge. For San Francisco, when the city gets heavy rain, its wastewater treatment facilities, which also process stormwater, can overflow. That discharges untreated water, including raw sewage, into the Pacific Ocean and the San Francisco Bay.
San Francisco had two duties, broadly speaking, to receive a permit from the EPA for these discharges. First, there were technological requirements for how it treats and cleans wastewater. Second, any discharge must not violate any water quality standard for the body of water it flows into.
Now, there’s no dispute that the EPA has the authority to set limitations, “including those necessary to meet water quality standards.” It would be hard to dispute that, because it’s literally the text of the law about this sort of pollutant discharge. But, according to San Francisco, that requirement is too vague and too hard to meet, and the EPA should only be allowed to regulate the amount and type of harmful material that might be released.
In order to agree with San Francisco and take another opportunity to kneecap the Clean Water Act, Justice Samuel Alito had to tie himself in knots and essentially say that while the law allows the EPA to set limitations, it can’t set a general limitation about how polluters must meet water quality standards.
We get to take a trip through multiple dictionaries so that Alito can torture the definitions of common words like “implement” and “meet” and “limitations” to get his preferred result: The EPA cannot require polluters to comply with the water quality standards of the body of water they’re sloshing poopwater into despite the EPA’s authority to regulate water quality standards.
If you’re thinking this sounds a lot like the conservatives on the Supreme Court just made it far harder for the EPA to impose regulations about clean water, despite that whole Clean Water Act thing, you’re right. But Alito didn’t stop there.
Ever eager to solidify his reputation as a troll in a robe, Alito also threw in this cute little bit about how the EPA needs to just buckle down and get to work: “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.”
Environmental Protection Agency Administrator Lee Zeldin
Last week, in his first Cabinet meeting, Trump declared that Environmental Protection Agency Administrator and foe of the environment Lee Zeldin “thinks he’s going to be cutting 65 or so percent of the people from environmental.” The administration later clarified that Trump only meant he’d cut the agency’s budget by 65% and fire some large-ish, but unspecified, amount of personnel, as if that sounds any better.
To be fair, this stance is slightly better than what Trump promised in his first term, which was to eliminate the agency almost entirely, leaving “only tidbits” intact. The notion that an eviscerated agency run by Zeldin and the crew of pollution enthusiasts Trump appointed to top positions will somehow vigorously pursue water quality efforts is comical, and Alito knows it.
Alito also reminded everyone that the sole power to determine what the law means and how to implement that law lies with the Court now. Last year’s Loper Bright Enterprises v. Raimondo eliminated the Chevron doctrine, a 40-year precedent that had required courts to defer to an agency’s interpretation of an unclear statute.
People who actually want things like clean water understand that career scientists and policy experts would be in the best position to implement environmental laws. People who don’t want things like clean water, though, won this battle, so now randos like Alito get to decide instead.
Justice Neil Gorsuch
If you’re wondering how well this approach is working, peep the original version of Justice Neil Gorsuch’s majority opinion in Ohio v. EPA, which significantly hobbled the agency’s ability to regulate smog. When the opinion was first released, Gorsuch repeatedly referred to nitrous oxide—the stuff you get at the dentist—when what the case was about was nitrogen oxide, which helps form smog. A corrected opinion was issued only after everyone made fun of Gorsuch on social media.
The whole “dumping raw sewage straight into the water supply” thing at issue here isn’t theoretical or just something San Francisco was worried would be a future problem. As Justice Amy Coney Barrett explained in her dissent—yes, Barrett sided with the liberals on the court and wrote the opinion?!—discharge from San Francisco’s sewer system has already led to “discoloration, scum, and floating material, including toilet paper, in Mission Creek.” Yum.
The Supreme Court’s conservatives had already significantly weakened another part of the Clean Water Act two years ago in a ruling that limited the EPA’s ability to protect wetlands—118 million acres of wetlands, to be exact. With this, the Court also drastically limited the EPA’s ability to protect our lakes, rivers, and oceans.
This is a hands-down victory for polluters—and for raw sewage, apparently. But it’s also a hands-down victory for the Trump administration, which made a commitment to allowing more raw sewage in your drinking water back in his first term.
More broadly, the majority’s smug willingness to ignore science and substitute their own judgment in a fashion that somehow always ends up on the side of the polluters is exactly what Trump needs going forward as he takes a hatchet to all the environmental protections the nation has.
Trump calls himself a king. But we know we are not a nation of kings—and we never will be. Get your Daily Kos T-shirt or hat to spread the message and wear it with pride: No Kings.
