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.
In October, the court will hear a Clean Water Act case, Saint Francis v. EPAconsidering the enforcement of National Pollutant Discharge Elimination System (NPDES) permits that include generic, rather than specific, language regarding requirements for the discharge of treated wastewater to the ocean.
The case pits numerous municipal water companies, construction industry associations and other trade groups against the US Environmental Protection Agency. The San Francisco Public Utilities Commission (SFPUC) asked the US Supreme Court to review the case after a 2023 decision by San Francisco’s Ninth Circuit Court of Appeals rejected the company’s arguments of water that the language of its new NPDES permit was so vague that the The power company could face penalties for not understanding what the requirements were.
Amanda Aspatore, general counsel for the National Association of Clean Water Agencies, which filed a friend-of-the-court brief supporting SFPUC, says Clean Water Act permits should provide guidance clear about what can and cannot be safely dumped into the country’s 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 allowing uncertainty.”
In their legal brief, the National Association of Home Builders, the Associated General Contractors of America and the American Association of Highway and Transportation Builders wrote: “The generic narrative provisions place permit holders in a position vulnerable to not knowing in advance what they are required to comply with.with their permit, they run the risk of being held responsible for the discharge of even one molecule of a given pollutant, regardless of state of the receiving water, and refers to a permit program that this Court and Congress found unsustainable.”
However, in its petition, 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 as support for other requirements specified in the language of the permit with sufficient specificity to make it clear what is required to comply.
Supreme Court justices will hear oral arguments in the case on October 16.
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 Coloradoexamdetermine whether agencies without regulatory authority may require additional environmental impact analyses.
The U.S. Court of Appeals for the D.C. Circuit ruled in August 2023 that the Surface Transportation Board could not prevent environmental reviews of a proposed new rail line in Utah “because has no authority to prevent, control or mitigate” the environment. effects that could occur, in this case, the potential impacts of the rail line on oil wells and refineries.
AGC of America General Counsel Leah Pilconis notes that AGC and other like-minded trade groups are pushing back on what they see as excessive regulation. “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.
