The US Supreme Court begins its 2024 session on October 7 with a docket that includes cases that could have far-reaching impacts on construction, including Saint Francis v. EPAwith oral arguments set for October 16. Judges will consider whether National Pollutant Discharge Elimination System permits are enforceable under the federal Clean Water Act if they include generic, rather than specific, language about discharge requirements treated wastewater in the ocean.
The case pits numerous municipal water companies, construction industry associations and other trade groups against the US Environmental Protection Agency. The city and county of San Francisco asked the high court to review the case after a 2023 decision by the city’s U.S. Court of Appeals rejected the Commission’s arguments San Francisco Public Utilities that the language of its new permit was so vague that the company could face penalties. for not understanding what the requirements were.
Amanda Aspatore, general counsel of 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 a clear guidance on what can and cannot be safely dumped into US 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 money to achieve the best environmental outcomes for the communities they serve and to protect financially overburdened ratepayers from unnecessary associated costs to the uncertainty of allowing”.
In a joint legal brief, the National Association of Home Builders, Associated General Contractors of America and the American Association of Highway and Transportation Builders wrote: “Generic narrative provisions place licensees in a vulnerable position of not knowing in advance what is required of them to comply with their permit, with the risk of being held responsible for discharging even one molecule of a certain pollutant, regardless of the actual state of the receiving water” .
In its petition, however, EPA states that the language in question, “The discharge shall not cause or contribute to a violation of any applicable water quality standard” was intended to support other requirements specified in the language of the permit with enough specificity to be clear about what must be complied with.
Project reviews, approvals under scrutiny
Later, the nation’s top court will hear arguments in an Ecase of the Environmental Policy Act (NEPA), Seven County Coalition v. Eagle County Coloradoto decide whether agencies without regulatory authority may require additional environmental impact analyzes of the project.
The federal appeals court in Washington, DC ruled in August 2023 that the Surface Transportation Board could not prevent environmental reviews of a planned new rail line in Utah “because it does not have authority to prevent, control or mitigate” the environmental effects that could potentially occur, which in this case are the potential impacts of the rail line on oil wells and refineries.
AGC of America General Counsel Leah Pilconis says the group and others oppose what they say is overregulation.
“We’re really pushing back when we think that federal regulations that have huge costs and impacts for the construction business and that are not authorized by law, [and] agencies have been filling in the blanks where the statues are ambiguous or silent,” he says.
The high court also agreed to decide whether the U.S. Nuclear Regulatory Commission has authority to license a private company to build a temporary off-site storage facility for spent nuclear power plant fuel after a ruling by the US appeals court said no. The high court review follows appeals by the Biden Administration and the joint venture that received an agency license for a $350 million facility in west Texas.
Those state and oil industry groups challenged the approved 2021 license for the interim storage partners, made up of Dallas-based Orano USA and Waste Control Specialists. Also part of the case is a license for the $230 million first phase of a waste storage site in New Mexico proposed by Holtec International. Two federal appeals courts rejected the lawsuits against the licenses, but the New Orleans court said the commission had no authority under federal law to issue them.
Methane rule in effect, for now
But in an unexpected move in a requested emergency action, the justices on Oct. 4 declined to consider legal requests by several Republican-led states, oil and gas companies and trade groups to block the rules from of the EPA go into effect to regulate methane emissions from most oil and petroleum. gas facilities and to curb mercury air pollutant emissions from coal-fired power plants, while challenges play out in federal appeals court in Washington, DC.
The methane rule went into effect last year and the mercury rule in May.
David Doniger, a senior attorney for the Natural Resources Defense Council, said the pause does not end ongoing litigation challenging the rule. “We will now join the EPA in defending these standards. But today’s decision is a key sign that the EPA retains the ability to address climate pollution under the Clean Air Act,” he said in a statement .
But Jim Matheson, CEO of the National Rural Electric Cooperative Association, said in a statement that the cost of implementing the mercury rule would force some power plants to close. “This EPA rule is illegal, unworkable and poses a serious threat to electric reliability,” he said.
