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 U.S. Court of Appeals in San Francisco rejected the Utilities Commission’s arguments San Francisco public 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 invest public money effectively and efficiently to achieve the best environmental outcomes for the communities they serve and protect financially burdened ratepayers from unnecessary costs associated with 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.
Environmental reviews 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.
Methane rule in place, for now
Meanwhile, the justices on Oct. 4 rejected a request by several Republican-led states, oil and gas companies and trade groups to block the EPA’s methane rule from taking effect while their opposing lawsuits they make their way through the judicial system.
The rule came into effect 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 .
