If there is one thing a bureaucracy loves more than power, it’s ambiguity in the laws it enforces. Through ambiguity, an agency maintains maximum discretion over the regulated public. Its wielding of ambiguous power may be fair, or it may be arbitrary. To a regulated entity, ambiguity and standardless discretion create the fear that even the most scrupulous attempts at compliance may never be enough to be fully protected from enforcement or litigation.

Such ambiguity is the crux of the issue in San Francisco v. Environmental Protection Agency, which the Supreme Court will hear next term.

In passing the Clean Water Act, Congress established a permit system whereby cities and businesses could obtain permits when they could not otherwise avoid discharges into water bodies. Compliance with the terms of a permit insulates the permittee from enforcement actions and lawsuits for Clean Water Act violations.

But EPA refuses to issue permits that provide specific limits on pollution discharges. EPA’s permits do not set numerical standards. They do not, for example, declare that a city can discharge only X number of gallons of substance Y over a specified period of time. Instead, EPA’s permits “contain generic prohibitions against violating water quality standards,” such as whether a discharge is “causing or contributing to the violation of water quality standards.” These standardless standards muddle the distinction in the CWA between effluent limitations and water quality standards and fly in the face of the CWA’s goal of providing certainty to both the public and regulated entities.

What is most troubling is that the only way to determine whether water quality standards are being violated is to look not at the actual discharges, but to the receiving water body. If the pollution level in a receiving lake or stream is too high, then the city or business may be guilty of a violation. But for many cities and industries, that is just too vague and imprecise. There may be many contributors to the pollution of a particular waterbody. The receiving body may already be polluted from multiple sources, both natural and manmade. How is a city or business supposed to know how much is too much? As the City argues in this case, “These generic water quality terms expose San Francisco and numerous permitholders nationwide to enforcement actions while failing to tell them how much they need to limit or treat their discharges to comply with the Act.”

The City of San Francisco sued the EPA, alleging that these vague standards violate the requirements of the Clean Water Act. In contrast to an earlier Second Circuit decision which, according to the City, struck down similar permit standards, the Ninth Circuit ruled in favor of EPA. San Francisco petitioned for certiorari from the Supreme Court asking whether the Clean Water Act allows the EPA “to impose generic prohibitions in [CWA] . . . permits that subject permitholders to enforcement for exceedances of water quality standards without identifying specific limits to which their discharges must conform.” Several dozen business lobbies and organizations representing municipal treatment facilities joined in support of the petition, all claiming that EPA’s standards are overly vague and subject them to unquantifiable liability.

The EPA responded to the petition by asserting that its “narrative” permit standards conform to the Clean Water Act’s “overarching regulatory context.” The standards, EPA contends, “adequately specify the limits to which petitioner’s discharge must conform,” i.e. they must “not cause or contribute to a violation of any applicable water quality standard . . . for receiving waters.”

San Francisco has already being threatened with suit from San Francisco Baykeepers over alleged permit violations. And shortly after San Francisco petitioned the Supreme Court for review, the EPA sued the City for violation of these same imprecise permit standards. As the City wrote in a supplemental brief, the suit is subjecting the City to “hundreds of millions of dollars in civil penalty as well as billions more in injunctive relief.”

By refusing to set specific effluent standards, the EPA is maintaining maximum discretion to sue permittees. Under this state of affairs, cities and businesses have no way of determining whether there is a permit violation until after EPA or an environmental group sue. That makes it impossible to plan or to decide on which pollution control measures to employ.

This is a problem that is common to government regulations. When regulations are too vague, citizens are at mercy of bureaucrats who can claim there has been a violation even though it is impossible to discern exactly what constitutes a violation. This was a key argument in another recent case involving the Clean Water Act: Sackett v. EPA. In that case, because the “hydrological connection” between the Sacketts’ property and the closest navigable water way was so imprecise, a unanimous Court ruled that EPA had gone too far.

Now the Supreme Court will decide whether the CWA allows the current ambiguous state of affairs to persist.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].