Some agricultural groups are supporting the City and County of San Francisco's Supreme Court challenge to EPA water quality standards.
The court agreed in May to review last year's 9th Circuit Court of Appeals decision upholding a National Pollutant Discharge Elimination System (NPDES) permit for San Francisco. The issue is that the permit's "generic water quality prohibitions ... neither set limits on the quantities of pollutants that San Francisco may discharge nor prescribe management practices that the city must implement,” the municipality said in its petition.
A wide variety of industry groups, from petroleum to mining, filed a friend-of-the-court brief backing the city. Farm groups who joined are the American Farm Bureau Federation and National Pork Producers Council.
Michael Formica, NPPC's chief legal strategist, said the EPA standard is impossible to meet. His concern is that the agency did not clarify when discharges “do not cause or contribute to exceedance of water quality standards.”
“Instead of setting clear targets [as to] what the numbers are, [EPA] .. included a very open-ended provision … that's unworkable. [It’ll] set San Francisco up for certain lawsuits and litigation. We don't want that. We don't want that type of permit term to ever become acceptable, because it would put every farmer in America at risk,” said Formica, in an interview with Agri-Pulse.
“EPA policy should not impose open-ended standards … on permit holders, whether they are municipal governments or farmers,” said Formica.
EPA, in responding to the petition, said "contrary to petitioner’s contention, the two narrative limitations at issue adequately specify the limits to which petitioner’s discharges must conform.
Travis Cushman, deputy general counsel, litigation and public policy for AFBF, said the EPA should let permittees know what they need to do to comply.
AFBF's Travis Cushman“I think it is very relevant that in the last few years, the court has taken a number of CWA and Clean Air Act cases [like the 2023 Sackett v. EPA decision] to strike EPA’s behavior. We at AFBF are noticing that the EPA has at times exceeded its authority. We want the EPA to follow the law,” said Cushman.
Nonprofits that are not directly affected by the case are frustrated as well. James Burling is vice president of legal affairs at Pacific Legal Foundation, a Sacramento-based public interest law firm that fights what it sees as government overreach and abuse.
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Burling said PLF is concerned when regulatory agencies seemingly ignore congressional mandates when establishing permitting systems.
“In passing the CWA, Congress established a permit system where cities and businesses could obtain permits which told them exactly what and how much they could discharge into a water body. By getting a permit with specific discharge limits, a city or business can tell exactly what they are allowed to do. If a city or business complies with all permit conditions, they cannot be sued,” Burling said.
Critics see the problem as EPA's refusal to issue permits that specify the amount of allowable discharge. EPA holds the city cannot have a discharge that might cause a receiving water such as a lake, stream or bay to exceed water quality standards.
“For many cities and industries, that is just too vague and imprecise. There may be many contributors of pollution to a particular water body. How is a city or business supposed to know how much is too much?” Burling asked.
The situation of a dense urban municipality with no substantial agricultural business finding common ground with national associations of farm-related businesses, many of which are in rural areas, may be unique. Still, the circumstances mirror the contention regarding definitions of terms in the decision in the 2023 Supreme Court case, NPPC v. Ross.
In that case, the court upheld California’s Proposition 12, which banned the in-state sale of animal products like eggs produced in a manner that involved “confinement in a cruel manner.”
Brianna Schroeder Regulated entities binding together does not present traditional politics that appear on the evening news, said Brianna Schroeder, a partner at Janzen Schroeder Ag Law LLC. The business is an Indianapolis law firm specializing in agricultural law. “The Prop 12 case [even] involved some unusual alignments on the Supreme Court – traditionally liberal justices siding with animal agriculture and more conservative justices upholding a liberal California law,” Schroeder said.
One of the twists to the San Francisco case is that not all companies with products such as beef or fertilizer will be directly affected by the ruling. This is true for members of national industry associations that joined the brief. Some firms do not need NPDES permits although they operate the same type of business as their peers in surrounding states.
Josh Trenary, executive director of Indiana Pork, said Indiana pork farms have not been required to have NPDES permits for more than a decade.
“In 2011, the [U.S. Court of Appeals for the Fifth Circuit] ruled in NPPC v. EPA that EPA’s authority under the CWA to require Concentrated Animal Feeding Operations (CAFOs) to obtain an NPDES permit was limited to actual discharges to navigable water. Our operations don’t discharge. The only way manure leaves the site of a CAFO is when it is land applied at an agronomic rate,” he said.
After NPPC v. EPA, Indiana incorporated CAFO sites into its own regulations under state law. This means the ruling in the San Francisco case will have little effect on environmental permits for Indiana farms.
But Trenary said Indiana pork farmers nevertheless are watching the San Francisco case.
“If [the court] did not rule for San Francisco, we would still have concerns. Lack of clarity in regulatory provisions and requiring changes to permit provisions in the absence of a clear violation could creep beyond the NPDES program and into other areas of the CWA,” he said.
Lydia Johnson contributed to this report.
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