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Sewage discharge fines are a damning indictment of the water regulators

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Tuesday, August 6, 2024

Behind the record fines announced by Ofwat for the routine dumping of sewage into rivers and seas by three water companies, there is a voiceless victim, one that does not sit in boardrooms, or get a chance to count dividends. It is our rivers and coastal waters, subjected to years of continuous pollution under the noses of the regulators, which are suffering.In all likelihood the £168m penalties for the already struggling Thames Water, Yorkshire Water and Northumbrian Water will be followed by fines for the remaining eight water and sewerage companies, all of whom Ofwat is investigating over failure to treat sewage according to the law.The penalties are yet more evidence of the systemic, industry-wide failure of the privatised water industry to fulfil its legal duties. Now is the time to ask how much - if any – of the millions in fines will be spent in the months and years ahead on ecological restoration and mitigation for these damaged habitats?It was concerned local people turned activists and campaigners who put pressure on the regulator to look a little more closely at what water companies have been doing.Across the country they believed they were seeing clear evidence in their local rivers that water companies were routinely discharging sewage instead of treating it as they are legally obliged to do.To put it simply, water companies have been using rivers as open sewers for years, failing to properly invest in upgrading their ageing treatment works to cope with population growth and climate change. So it is no surprise that no river in England is in good health.Campaigners such as Becky Malby in Yorkshire argued in 2020 that discharging raw sewage into rivers was a national problem, as she tenaciously pushed for a section of the River Wharfe in Ilkley to be given bathing water status to expose the scale of the pollution. She said then that the discharges were in breach of the law which states that raw sewage must only be discharged in exceptional circumstances.Four years on Ofwat now agrees with her, saying in its findings on Tuesday that the three companies routinely released sewage into rivers and seas, and failed to ensure that discharges from storm overflows would occur only in exceptional circumstances, which had “resulted in harm to the environment and their customers”. Forty-five percent of Yorkshire Water’s storm overflows were operating in breach of their legal permits, Ofwat said.At Britain’s biggest water company, Thames Water, 67% of its treatment works had capacity and operational problems, and 16% of its storm overflows were in breach of their permits.Many of those who have gathered the evidence and forced politicians and the regulators to listen are now asking how Ofwat can survive. It said on Tuesday that the water companies had been “slow to understand the scope of their obligations relating to limiting pollution”.But which body should have made those obligations crystal clear through rigorous oversight and enforcement? None other than Ofwat itself.Nor is it just Ofwat thatt has failed, campaigners say. The Environment Agency, which like the Post Office, has prosecuting powers, is continuing a parallel criminal investigation into Ofwat’s enforcement action. Yet after nearly three years not one water company or individual has been charged as a result of it.skip past newsletter promotionThe planet's most important stories. Get all the week's environment news - the good, the bad and the essentialPrivacy Notice: Newsletters may contain info about charities, online ads, and content funded by outside parties. For more information see our Privacy Policy. We use Google reCaptcha to protect our website and the Google Privacy Policy and Terms of Service apply.after newsletter promotionGuy Linley-Adams of the environmental group WildFish spoke for many campaigners on Tuesday. “The fines issued today represent not only the failure of Thames, Yorkshire and Northumbrian Water to treat sewage according to the law, they also indicate a massive regulator failing by the Environment Agency and Ofwat,” he said.“Neither regulator should be claiming any success today, but instead they should be apologising for failing to regulate the water industry and failing to enforce the law.”Linley-Adams pointed out that the EA awarded the three offending water companies almost 100% in their environmental performance assessment for sewage permit compliance last year, all while the “appalling pollution goes on”.Experts within the industry say radical change is needed. Alastair Chisholm, policy director at the Chartered Institution of Water and Environmental Management, said Ofwat’s findings were not a surprise, and that an urgent and deep review into the operation of the water industry and regulation was needed.“A healthy society and robust economy need healthy and resilient water suppliesThey are not a luxury.”

The penalties reflect the failings of the Environment Agency and Ofwat as much as the water companiesBehind the record fines announced by Ofwat for the routine dumping of sewage into rivers and seas by three water companies, there is a voiceless victim, one that does not sit in boardrooms, or get a chance to count dividends. It is our rivers and coastal waters, subjected to years of continuous pollution under the noses of the regulators, which are suffering.In all likelihood the £168m penalties for the already struggling Thames Water, Yorkshire Water and Northumbrian Water will be followed by fines for the remaining eight water and sewerage companies, all of whom Ofwat is investigating over failure to treat sewage according to the law. Continue reading...

Behind the record fines announced by Ofwat for the routine dumping of sewage into rivers and seas by three water companies, there is a voiceless victim, one that does not sit in boardrooms, or get a chance to count dividends. It is our rivers and coastal waters, subjected to years of continuous pollution under the noses of the regulators, which are suffering.

In all likelihood the £168m penalties for the already struggling Thames Water, Yorkshire Water and Northumbrian Water will be followed by fines for the remaining eight water and sewerage companies, all of whom Ofwat is investigating over failure to treat sewage according to the law.

The penalties are yet more evidence of the systemic, industry-wide failure of the privatised water industry to fulfil its legal duties. Now is the time to ask how much - if any – of the millions in fines will be spent in the months and years ahead on ecological restoration and mitigation for these damaged habitats?

It was concerned local people turned activists and campaigners who put pressure on the regulator to look a little more closely at what water companies have been doing.

Across the country they believed they were seeing clear evidence in their local rivers that water companies were routinely discharging sewage instead of treating it as they are legally obliged to do.

To put it simply, water companies have been using rivers as open sewers for years, failing to properly invest in upgrading their ageing treatment works to cope with population growth and climate change. So it is no surprise that no river in England is in good health.

Campaigners such as Becky Malby in Yorkshire argued in 2020 that discharging raw sewage into rivers was a national problem, as she tenaciously pushed for a section of the River Wharfe in Ilkley to be given bathing water status to expose the scale of the pollution. She said then that the discharges were in breach of the law which states that raw sewage must only be discharged in exceptional circumstances.

Four years on Ofwat now agrees with her, saying in its findings on Tuesday that the three companies routinely released sewage into rivers and seas, and failed to ensure that discharges from storm overflows would occur only in exceptional circumstances, which had “resulted in harm to the environment and their customers”. Forty-five percent of Yorkshire Water’s storm overflows were operating in breach of their legal permits, Ofwat said.

At Britain’s biggest water company, Thames Water, 67% of its treatment works had capacity and operational problems, and 16% of its storm overflows were in breach of their permits.

Many of those who have gathered the evidence and forced politicians and the regulators to listen are now asking how Ofwat can survive. It said on Tuesday that the water companies had been “slow to understand the scope of their obligations relating to limiting pollution”.

But which body should have made those obligations crystal clear through rigorous oversight and enforcement? None other than Ofwat itself.

Nor is it just Ofwat thatt has failed, campaigners say. The Environment Agency, which like the Post Office, has prosecuting powers, is continuing a parallel criminal investigation into Ofwat’s enforcement action. Yet after nearly three years not one water company or individual has been charged as a result of it.

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Guy Linley-Adams of the environmental group WildFish spoke for many campaigners on Tuesday. “The fines issued today represent not only the failure of Thames, Yorkshire and Northumbrian Water to treat sewage according to the law, they also indicate a massive regulator failing by the Environment Agency and Ofwat,” he said.

“Neither regulator should be claiming any success today, but instead they should be apologising for failing to regulate the water industry and failing to enforce the law.”

Linley-Adams pointed out that the EA awarded the three offending water companies almost 100% in their environmental performance assessment for sewage permit compliance last year, all while the “appalling pollution goes on”.

Experts within the industry say radical change is needed. Alastair Chisholm, policy director at the Chartered Institution of Water and Environmental Management, said Ofwat’s findings were not a surprise, and that an urgent and deep review into the operation of the water industry and regulation was needed.

“A healthy society and robust economy need healthy and resilient water suppliesThey are not a luxury.”

Read the full story here.
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River campaigners to sue Ofwat over water bill rises

Group claims regulator signed off on ‘broken system’ making customers pay for industry’s neglect An environmental group is to take legal action against Ofwat, the water regulator, accusing it of unlawfully making customers pay for decades of neglect by the water industry.River Action will file the legal claim this month, arguing that bill rises for customers that have been approved by the regulator could be used to fix infrastructure failures that should have been addressed years ago. Continue reading...

An environmental group is to take legal action against Ofwat, the water regulator, accusing it of unlawfully making customers pay for decades of neglect by the water industry.River Action will file the legal claim this month, arguing that bill rises for customers that have been approved by the regulator could be used to fix infrastructure failures that should have been addressed years ago.The group argues customers could be forced to pay twice as a result. Under the rules, the public should not pay for investment to make water companies compliant with their permits to operate. This includes adhering to limits on discharges of raw sewage into rivers and a requirement to make sure treatment works are functioning properly.Water companies are under investigation by Ofwat for breaches to their permits, an inquiry that is being run alongside a criminal investigation by the Environment Agency.River Action’s legal challenge focuses on funding allocated for wastewater treatment works and pumping stations by United Utilities in and around Lake Windermere.The group will argue Ofwat has allowed United Utilities to divert funds meant for future projects to deal with past failures. It is not suggested that United Utilities has acted unlawfully.“We believe Ofwat has acted unlawfully by approving … funds without ensuring they are spent on genuine improvements to essential infrastructure,” said Emma Dearnaley, the head of legal at River Action. “Instead, this … funding is being allowed to be used to cover up years of failure.“Ofwat has signed off on a broken system where customers are being charged again for services they have already funded. The cost of fixing the UK’s crumbling water infrastructure should fall on the companies and their investors, not on the British public.”River Action believes that under PR24, the price review approved by Ofwat in January, the regulator has probably permitted other firms to operate in a similar way, leaving customers to pay for failings that should have been fixed with previous funding.Ricardo Gama, of Leigh Day, which is representing the campaign group, said: “Ofwat has said … it won’t let price rises be spent on fixing historic issues which are leading water companies to breach their permits.skip past newsletter promotionThe planet's most important stories. Get all the week's environment news - the good, the bad and the essentialPrivacy Notice: Newsletters may contain info about charities, online ads, and content funded by outside parties. For more information see our Privacy Policy. We use Google reCaptcha to protect our website and the Google Privacy Policy and Terms of Service apply.after newsletter promotion“They’ve said in black-and-white terms that customers won’t be expected to pay twice. But in documents seen by River Action it looks like Ofwat hasn’t done its homework in checking whether the money it’s letting United Utilities take from customers will actually be used for that purpose.”An Ofwat spokesperson said: “We reject River Action’s claims. The PR24 process methodically scrutinised business plans to ensure that customers were getting fair value and investment was justified.“We agree that customers should not pay twice for companies to regain compliance with environmental permits, and have included appropriate safeguards in our PR24 determinations to ensure this, which we will monitor closely, taking action if required. We will respond to their letter in due course.”

Group alleges Port of Morrow misled Kotek for permission to dump toxic water

The Port successfully petitioned the state for an executive order to suspend environmental regulations in order to save jobs.

A group of 26 conservation nonprofits, grassroots organizations and community leaders have signed a letter sent to Oregon Gov. Tina Kotek alleging the Port of Morrow, located along the Columbia River in northeastern Oregon, intentionally misled the governor about its wastewater storage capacity while seeking an emergency order earlier this year. The Feb. 21 letter, authored by advocacy group Oregon Rural Action and undersigned by a former Oregon Department of Environmental Quality (DEQ) administrator and a former Morrow County commissioner, among others, requests that the governor rescind an executive order she made in January that allows the Port of Morrow to violate its wastewater permit. “We believe this decision was misguided and may have been based on incomplete, misleading, or inaccurate information,” the letter reads. “[The executive order] needlessly allows for increased pollution during the high-risk winter season when the risk to the public is highest, threatening to worsen an already severe crisis.”The letter also requests the governor declare a public health and environmental emergency in the Lower Umatilla Basin due to nitrate pollution in groundwater within the Lower Umatilla Basin Groundwater Management Area.A spokesperson for the Office of Governor Kotek told Columbia Insight in an email that her office had received the letter and is reviewing it. The Lower Umatilla Basin Groundwater Management Area, which spans 550 square miles across Morrow and Umatilla counties along the Columbia River, has been plagued with high levels of nitrates in groundwater since the 1990s.A report released by Oregon DEQ in January found that nitrate contamination, driven primarily by agricultural practices, has continued to worsen over the past decade.“The people who are affected by this pollution, the victims of pollution, are low-income, non-English speaking, disproportionately Latino and immigrants, working class,” Kaleb Lay, director of policy and research at Oregon Rural Action, told Columbia Insight. “They don’t have a lot of power on their own, but that’s why we’re supposed to have regulations and laws—so the polluters can’t get away with this sort of thing.” Chronic polluterThe Port of Morrow, Oregon’s largest industrial port east of Portland, accepts wastewater from industrial businesses such as food processing plants, data centers and a PG&E-owned power plant.The Port then moves that nitrogen-rich wastewater upgradient for land application on agricultural fields.Specific conditions must be met for the land application of wastewater. The Port is only allowed to dump a certain amount of wastewater at a time to agricultural land in order to ensure the nitrates don’t reach groundwater stores.Land application during the rainy season is especially tricky, because if the soil is already saturated with water (from, say, a run of rainy weather), the Port must wait until the soil dries before spreading wastewater.The wastewater is stored in lagoons until it can be disposed of. “The fundamental problem is the Port has chronically—for years, years and years—produced way more [wastewater] than the fields where they’re allowed to dispose of it can possibly handle, which creates this leaching problem, which leads to permit violations and contaminates the groundwater,” said Lay. A 2022 investigation by the Oregon Capital Chronicle found the Port had violated its wastewater permits for the previous 15 years. In the last two years, DEQ has fined the Port more than $3.1 million for permit violations. The Port is in the midst of building out more lagoons to store the wastewater, a move that it hopes will end future winter water dumps on the land. Those lagoons are expected to be completed by November 2025. Executive order suspends rulesAmid a spell of unusually wet weather in December 2024, the Port of Morrow requested the governor sign an emergency order that would allow it to violate wastewater regulations, arguing that the predicted precipitation and freezing conditions would overwhelm its wastewater storage capacity, thus forcing the Port to exceed its land-application capacity.Without the order, the Port argued, it wouldn’t have any choice but to stop accepting wastewater, because it wouldn’t have any place to legally put it. That decision might have forced the industrial facilities generating wastewater to cease operations, which in turn could have led to “furloughs of potentially thousands of workers resulting in substantial economic harm to the region and the State of Oregon,” according to Gov. Kotek’s subsequent executive order (EO), issued Jan. 13.The EO granted the Port of Morrow’s request and declared a state of emergency “due to risk of economic shutdown” in Morrow and Umatilla counties.The EO allows the Port to apply wastewater only to fields that are down-gradient from domestic wells or those that are designated as low-risk for contamination. “I did not make this decision lightly,” Kotek said in a news release. “We must balance protecting thousands of jobs in the region, the national food supply, and domestic well users during this short period of time during an unusually wet winter.” Kotek’s order allows an exception to the Port of Morrow’s wastewater permit only from Jan. 15 through Feb. 28.The Port of Morrow officially invoked the EO’s use on Feb. 17, nearly a month after the EO was issued. Port of Morrow Executive Director Lisa Mittelsdorf told Columbia Insight in an emailed statement that the Port was able to delay invoking the order thanks to conservation efforts and management of its storage-lagoon capacity.“The order was invoked in accordance with its terms only when the Port determined that available storage capacity would be exhausted within seven days. As required by the order, the Port restricted land application to two farms with no down-gradient domestic users of alluvial groundwater,” the statement reads.Worrying precedentOregon Rural Action, however, doesn’t think the Port of Morrow was being honest in its emergency order request.In its letter to Gov. Kotek, the group compared statements and arguments used in the emergency request against the Port of Morrow’s own monthly reports to DEQ. “It’s a paper-thin argument that falls apart right away,” said Lay.He said the Port’s DEQ report states its storage capacity was only at 44% at the end of December, with roughly 335 million gallons of capacity available, despite the Port’s claim to the governor’s office that it was running out of storage space.“At the same time, they were expecting to produce less wastewater than they had in the previous two months,” said Lay. “So for the remainder of the winter [including January and February] they had more than half their wastewater storage available to them, and were expecting to make less [wastewater in January and February], which would lead one to believe that they could store all of what was left without much trouble at all.“It just doesn’t seem like that due diligence was done in the making of this decision to grant them this power.” The EO is set to expire at the end of this week, but “every day counts,” according to Lay.And concerns persist over the setting of a controversial precedent based on faulty information.“The permit conditions exist for a reason. They’re not perfect, but every violation that [occurs] is a violation because [the permit] is trying to prevent contamination of groundwater. Allowing them to violate without holding them accountable is just giving them a free pass to pollute,” said Lay. Kendra Chamberlain is a freelance journalist based in Eugene, Oregon, covering environment, energy and climate change. Her work has appeared in DeSmog Blog, High Country News, InvestigateWest and Ensia.##Columbia Insight, based in Hood River, Oregon, is a nonprofit news site focused on environmental issues of the Columbia River Basin and the Pacific Northwest.

The Supreme Court Muddied the Clean Water Act Yet Again

The Supreme Court dealt another blow to federal environmental protections on Tuesday in a major water pollution case. In a 5–4 ruling in City and County of San Francisco v. EPA, the justices held that the Environmental Protection Agency could no longer hold certain polluters responsible when the cleanliness of American waterways fell below minimum acceptable standards.Justice Samuel Alito, who wrote for the court, ruled that the agency had gone beyond what the Clean Water Act allowed. “We hold that the two challenged provisions exceed the EPA’s authority,” he wrote. “The text and structure of the CWA, as well as the history of federal water pollution legislation, make this clear. And resorting to such requirements is not necessary to protect water quality.”In a dissenting opinion, Justice Amy Coney Barrett wrote that the majority had badly misread the text and history of the Clean Water Act’s provisions at issue. (The court’s three liberal justices joined her.) But she also argued that her colleagues had done so in pursuit of a specific outcome that was at odds with what Congress had written.“Really, the Court’s argument reduces to the broader policy concern that it may be difficult for regulated entities to comply with receiving water limitations and that they may lack adequate notice of a violation,” she wrote. Those polluters could bring other types of legal challenges in those cases, Barrett explained, but “these concerns do not speak to the relevant question here, which is whether receiving water limitations comport with the Act.”The case represents yet another victory in the Roberts court for polluters, who have again persuaded five conservative justices to adopt stilted readings of environmental laws to reduce their regulatory burdens. The plaintiff in this case—one of the most environmentally conscious cities in the nation—is an unusual one. But the author of the majority opinion was not. Tuesday’s ruling is also a victory for Alito himself, who appears almost eager to rewrite the Clean Water Act more narrowly whenever the opportunity presents itself.At issue in the case is how the Clean Water Act—and, through it, the EPA—regulates offshore water pollution. The question is particularly important for San Francisco. Like many other major U.S. cities, it handles stormwater and wastewater through the same sewage system. That system is able to treat both types of water without issue under normal circumstances.When it rains or snows more than usual, however, the city’s sewer system discharges some of the overflow into the Pacific Ocean. That overflow typically consists of an untreated mixture of wastewater, stormwater, and various urban pollutants. That would violate the Clean Water Act, which generally prohibits the disposal of such pollutants into the nation’s waters.One of the EPA’s tools to combat water pollution under the Clean Water Act is to issue permits for facilities that routinely discharge pollutants into American waterways. Those permits allow the EPA to set certain requirements for would-be polluters to ensure that their outflows meet minimum safety and sanitary thresholds. In exchange for their compliance, permittees are immunized from public or private environmental lawsuits for the duration of the permit, relieving them of the expenses of litigation and short-term regulatory changes.San Francisco is challenging its current permit requirements on multiple grounds. The one that reached the high court in this particular case centered on what Alito called the permit’s “end-result requirements.” In addition to meeting certain minimum requirements at the outset, the EPA also can also levy penalties against permittees if the relevant body of water—which the court calls the “receiving waters”—falls below minimum quality standards.Alito concluded that the Clean Water Act gave the EPA no authority to impose such end-result requirements on would-be polluters. The law allows the agency to impose “any more stringent limitation” that is “necessary to meet” state and federal “water quality standards” established by law or by federal regulation. Alito argued that the term “limitation” only allowed restrictions before the fact, not afterward.“A provision that tells a permittee that it must do certain specific things plainly qualifies as a limitation,” he wrote. “Such a provision imposes a restriction ‘from without.’ But when a provision simply tells a permittee that a particular end result must be achieved and that it is up to the permittee to figure out what it should do, the direct source of restriction or restraint is the plan that the permittee imposes on itself for the purpose of avoiding future liability. In other words, the direct source of the restriction comes from within, not ‘from without.’”Barrett was not persuaded, to say the least. “Limitation,” she wrote, “is simply a synonym for ‘a restrictive condition.’” She noted that “limitations” based on end results were common in everyday life, like a college limiting scholarships to students who maintain a minimum GPA or an employer who limits bonuses to workers based on performance standards. The end-result requirements, Barrett explained, give “practical effect” to water-quality standards “by making them enforceable.”She also emphasized that the plaintiffs would still not be without options to challenge those conditions under her reading of the law. “There is no getting around it: The receiving water limitations are ‘limitations,’” she wrote. “If they are vague or unreasonable, they are vulnerable to challenge on one or both of those grounds. But even a vague or unreasonable limitation is still a ‘limitation.’”Barrett’s reference to Alito’s “broader policy concerns” when it comes to the Clean Water Act is a familiar one. Two years ago, in Sackett v. EPA, he wrote the majority opinion in a decision that sharply limited what types of wetlands count as the “waters of the United States,” the key term for the act’s jurisdiction. Alito held that only wetlands with a “continuous surface connection” to larger bodies of water fell under the Clean Water Act’s terms.In that instance, Justice Brett Kavanaugh dissented from the court’s new interpretation, which he argued was at odds with the statutory text. “The Court’s test narrows the Clean Water Act’s coverage of ‘adjacent’ wetlands to mean only ‘adjoining’ wetlands,” he wrote. “But ‘adjacent’ and ‘adjoining’ have distinct meanings.” Kavanaugh warned at length that the court’s misreading of the statutory text “will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States.”In a separate dissent, Justice Elena Kagan agreed with Kavanaugh and argued that Alito’s misreading of the law was driven by his own policy preferences. She pointed to his own phrasing choices that depicted the EPA as a heavy-handed brute and ordinary Americans as its hapless victims. “Congress, [Alito] scolds, has unleashed the EPA to regulate ‘swimming pools and puddles,’ wreaking untold havoc on ‘a staggering array of landowners,’” she wrote. “Surely something has to be done; and who else to do it but this court? It must rescue property owners from Congress’s too-ambitious program of pollution control.”As evidence of his policy views, Kagan cited Alito’s references to “crushing consequences” for those caught in the EPA’s web. Alito—perhaps intentionally, perhaps not—used the same adjective in Tuesday’s ruling. “When a permit contains such requirements,” he wrote in the San Francisco ruling, “a permittee that punctiliously follows every specific requirement in its permit may nevertheless face crushing penalties if the quality of the water in its receiving waters falls below the applicable standards.” (Emphasis mine.)Alito’s opinion only carries the force of law because four of his colleagues agreed to it. At the same time, the opinions in Sackett and San Francisco speak volumes about the court’s priorities and sympathies. Alito hypothesized at one point about a city that “devise[d] a careful plan” for water quality, “diligently implement[ed]” that plan, and still faced “dire potential consequences” if it failed. The EPA is presumed at every turn to be an onerous, malevolent creature; American cities and companies are well-meaning actors who humbly seek the regulatory relief that only the Supreme Court can offer. Alito and his colleagues are all too happy to provide it, even when the Clean Water Act itself doesn’t.

The Supreme Court dealt another blow to federal environmental protections on Tuesday in a major water pollution case. In a 5–4 ruling in City and County of San Francisco v. EPA, the justices held that the Environmental Protection Agency could no longer hold certain polluters responsible when the cleanliness of American waterways fell below minimum acceptable standards.Justice Samuel Alito, who wrote for the court, ruled that the agency had gone beyond what the Clean Water Act allowed. “We hold that the two challenged provisions exceed the EPA’s authority,” he wrote. “The text and structure of the CWA, as well as the history of federal water pollution legislation, make this clear. And resorting to such requirements is not necessary to protect water quality.”In a dissenting opinion, Justice Amy Coney Barrett wrote that the majority had badly misread the text and history of the Clean Water Act’s provisions at issue. (The court’s three liberal justices joined her.) But she also argued that her colleagues had done so in pursuit of a specific outcome that was at odds with what Congress had written.“Really, the Court’s argument reduces to the broader policy concern that it may be difficult for regulated entities to comply with receiving water limitations and that they may lack adequate notice of a violation,” she wrote. Those polluters could bring other types of legal challenges in those cases, Barrett explained, but “these concerns do not speak to the relevant question here, which is whether receiving water limitations comport with the Act.”The case represents yet another victory in the Roberts court for polluters, who have again persuaded five conservative justices to adopt stilted readings of environmental laws to reduce their regulatory burdens. The plaintiff in this case—one of the most environmentally conscious cities in the nation—is an unusual one. But the author of the majority opinion was not. Tuesday’s ruling is also a victory for Alito himself, who appears almost eager to rewrite the Clean Water Act more narrowly whenever the opportunity presents itself.At issue in the case is how the Clean Water Act—and, through it, the EPA—regulates offshore water pollution. The question is particularly important for San Francisco. Like many other major U.S. cities, it handles stormwater and wastewater through the same sewage system. That system is able to treat both types of water without issue under normal circumstances.When it rains or snows more than usual, however, the city’s sewer system discharges some of the overflow into the Pacific Ocean. That overflow typically consists of an untreated mixture of wastewater, stormwater, and various urban pollutants. That would violate the Clean Water Act, which generally prohibits the disposal of such pollutants into the nation’s waters.One of the EPA’s tools to combat water pollution under the Clean Water Act is to issue permits for facilities that routinely discharge pollutants into American waterways. Those permits allow the EPA to set certain requirements for would-be polluters to ensure that their outflows meet minimum safety and sanitary thresholds. In exchange for their compliance, permittees are immunized from public or private environmental lawsuits for the duration of the permit, relieving them of the expenses of litigation and short-term regulatory changes.San Francisco is challenging its current permit requirements on multiple grounds. The one that reached the high court in this particular case centered on what Alito called the permit’s “end-result requirements.” In addition to meeting certain minimum requirements at the outset, the EPA also can also levy penalties against permittees if the relevant body of water—which the court calls the “receiving waters”—falls below minimum quality standards.Alito concluded that the Clean Water Act gave the EPA no authority to impose such end-result requirements on would-be polluters. The law allows the agency to impose “any more stringent limitation” that is “necessary to meet” state and federal “water quality standards” established by law or by federal regulation. Alito argued that the term “limitation” only allowed restrictions before the fact, not afterward.“A provision that tells a permittee that it must do certain specific things plainly qualifies as a limitation,” he wrote. “Such a provision imposes a restriction ‘from without.’ But when a provision simply tells a permittee that a particular end result must be achieved and that it is up to the permittee to figure out what it should do, the direct source of restriction or restraint is the plan that the permittee imposes on itself for the purpose of avoiding future liability. In other words, the direct source of the restriction comes from within, not ‘from without.’”Barrett was not persuaded, to say the least. “Limitation,” she wrote, “is simply a synonym for ‘a restrictive condition.’” She noted that “limitations” based on end results were common in everyday life, like a college limiting scholarships to students who maintain a minimum GPA or an employer who limits bonuses to workers based on performance standards. The end-result requirements, Barrett explained, give “practical effect” to water-quality standards “by making them enforceable.”She also emphasized that the plaintiffs would still not be without options to challenge those conditions under her reading of the law. “There is no getting around it: The receiving water limitations are ‘limitations,’” she wrote. “If they are vague or unreasonable, they are vulnerable to challenge on one or both of those grounds. But even a vague or unreasonable limitation is still a ‘limitation.’”Barrett’s reference to Alito’s “broader policy concerns” when it comes to the Clean Water Act is a familiar one. Two years ago, in Sackett v. EPA, he wrote the majority opinion in a decision that sharply limited what types of wetlands count as the “waters of the United States,” the key term for the act’s jurisdiction. Alito held that only wetlands with a “continuous surface connection” to larger bodies of water fell under the Clean Water Act’s terms.In that instance, Justice Brett Kavanaugh dissented from the court’s new interpretation, which he argued was at odds with the statutory text. “The Court’s test narrows the Clean Water Act’s coverage of ‘adjacent’ wetlands to mean only ‘adjoining’ wetlands,” he wrote. “But ‘adjacent’ and ‘adjoining’ have distinct meanings.” Kavanaugh warned at length that the court’s misreading of the statutory text “will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States.”In a separate dissent, Justice Elena Kagan agreed with Kavanaugh and argued that Alito’s misreading of the law was driven by his own policy preferences. She pointed to his own phrasing choices that depicted the EPA as a heavy-handed brute and ordinary Americans as its hapless victims. “Congress, [Alito] scolds, has unleashed the EPA to regulate ‘swimming pools and puddles,’ wreaking untold havoc on ‘a staggering array of landowners,’” she wrote. “Surely something has to be done; and who else to do it but this court? It must rescue property owners from Congress’s too-ambitious program of pollution control.”As evidence of his policy views, Kagan cited Alito’s references to “crushing consequences” for those caught in the EPA’s web. Alito—perhaps intentionally, perhaps not—used the same adjective in Tuesday’s ruling. “When a permit contains such requirements,” he wrote in the San Francisco ruling, “a permittee that punctiliously follows every specific requirement in its permit may nevertheless face crushing penalties if the quality of the water in its receiving waters falls below the applicable standards.” (Emphasis mine.)Alito’s opinion only carries the force of law because four of his colleagues agreed to it. At the same time, the opinions in Sackett and San Francisco speak volumes about the court’s priorities and sympathies. Alito hypothesized at one point about a city that “devise[d] a careful plan” for water quality, “diligently implement[ed]” that plan, and still faced “dire potential consequences” if it failed. The EPA is presumed at every turn to be an onerous, malevolent creature; American cities and companies are well-meaning actors who humbly seek the regulatory relief that only the Supreme Court can offer. Alito and his colleagues are all too happy to provide it, even when the Clean Water Act itself doesn’t.

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