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PaperclipPerfector  1mo ago (text post)   34938 thread views

Culture War Roundup for the week of March 3, 2025

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Tuesday's Supreme Court opinion bears a surprising resemblance to the environmental rigmarole that I described in my previous posts (1 2 3).

  • Scenario 1: The state DEP (Department of Environmental Protection) gives to the state DOT (Department of Transportation) a permit saying that DOT can't pave near floodways, because that might cause flooding. DOT obeys the paving restriction. Even if flooding occurs later on (due to the actions of some entity other than DOT, or due to changes in precipitation patterns), DOT cannot be punished by DEP for that flooding, because it obeyed the restrictions of the permit. (I'm not quite sure what form such punishment would actually take. Are different arms of the same government allowed to impose fines on each other?)

  • Scenario 2: DEP gives to DOT a permit saying that (1) DOT can't pave near floodways, because that might cause flooding, and (2), if flooding occurs, DOT will be punished. DOT obeys the paving restriction. If flooding occurs later on (due to the actions of some entity other than DOT, or due to changes in precipitation patterns), DOT can be punished by DEP for that flooding, even though it did nothing wrong.

Scenario 2 sounds ridiculous, right? Well, keep reading.

  • Scenario 3: The federal EPA (Environmental Protection Administration) gives to San Francisco a permit saying that SF can't discharge untreated sewage into the ocean, because that might cause the ocean to become polluted. SF obeys the discharge restriction. Even if the ocean becomes polluted later on (due to the actions of some entity other than SF, or due to changes in ocean currents), SF cannot be punished by EPA for that pollution, because it obeyed the restrictions of the permit.

  • Scenario 4: EPA gives to San Francisco a permit saying that (1) SF can't discharge untreated sewage into the ocean, because that might cause the ocean to become polluted, and (2), if the ocean becomes polluted, SF will be punished. SF obeys the discharge restriction. If the ocean becomes polluted later on (due to the actions of some entity other than SF, or due to changes in ocean currents), SF can be punished by EPA for that pollution, in the amount of multiple billions of dollars, even though it did nothing wrong.

The Supreme Court now has ruled, by a bare majority of five to four, that the Clean Water Act does not authorize the EPA to issue the permit that is described in scenario 4. More specifically:

  • The text of the Clean Water Act passed by Congress says that a permit can contain, not just "effluent limitations", but also "any more stringent limitation that is necessary to meet the water-quality standards". "Effluent limitations" obviously permits scenario 3. The question before the Supreme Court is whether "any more stringent limitation" permits scenario 4.

  • The five-justice majority decided that, in this context, when Congress wrote "limitation" into the Clean Water Act, it meant that the EPA needed to tell San Francisco specifically what to do in order to avoid penalties (e. g., "your discharge into the ocean must not be polluting"), rather than just vaguely gesturing (e. g., "the ocean must not become polluted while you are discharging into it").

  • The four-justice minority disagrees with this assessment, and thinks that the word "limitation", regardless of context, can permit the EPA to make San Francisco responsible for the water quality of the ocean, rather than just for the water quality of what it discharges into the ocean. Direct quote: "A doctor could impose a 'limitation' on a patient's diet by telling the patient that she must lose 20 pounds over the next six months, even if the doctor does not prescribe a specific diet and exercise regimen. 'Limitations' can be general as well as specific, and general limitations can call for more specific ones."

IMO, legally the argument could go either way, but practically scenario 4 obviously is unfair and the majority's decision makes a heck of a lot more sense.

(I have put this comment in the culture-war thread because of articles like this one: "Supreme Court Rules the Clean Water Act Doesn't Actually Require That Water Be Clean")

I didn't read the opinions, but I can wrap my head around the argument that it's reasonable for the EPA to make "any more stringent limitation that is necessary to meet the water-quality standards, to the effect that A) if you're purposefully polluting and B) there's a set limit for acceptable pollution, C) you need to stop purposefully polluting when the cumulative pollution approaches that set limit, D) else be penalized.

I can't wrap my mind around it.

For one, doing so would require the polluter to come up with the data that powers an empirical model to predicts the response of cumulative pollution that arises when they release X pollutant. That sounds, canonically, like the judgment that Congress expressly vested in the EPA. Asking the polluter to reproduce that expertise is basically unfair.

C) you need to stop purposefully polluting

That's not how a combined storm/sewage system works. The city cannot "just stop" releasing effluent into the bay during a storm with the plant that it has. What they can do is, over the course of years, build more capacity to hold and treat that such that, on average, there is less overflow. But that has to be predicted and planned.

A productive discussion, especially given that the system was applying for a renewed license in 2019, would be for the EPA to make some estimates and require that the city build capacity to hold enough to meet the X^th percentile of rain. That would be a direct quantitative restriction of the sort Alito endorsed.

Maybe these two things come together: polluters (broadly speaking and in the specific case here) need predictability more than they need leniency. A defined target with specific requirements is, even if strict, far better than retroactive punishment based on results in a backwards-looking way. In the specific case, it's even more acute: the city cannot retroactively build more, nor can they tell citizens not to shit when it's raining.

Not only did I not read the decision, I was referring to general policy, not this particular series of events, so perhaps we're talking past each other. If the EPA didn't give SF any guidance on overall pollution limits, that's bad and unfair. What I'm saying is that I think it would be reasonable policy and a reasonable interpretation of the quoted statutory clause for the EPA to require polluters change their discharge methods, if overall pollution in their primary discharge environment exceeds a set limit. The alternative would be that the EPA couldn't restrict existing sources of pollution in response to overall pollution levels. Yes, this would require polluters to have backup plans, but a sewage system should have a lot of redundancy and excess capacity - that's civil engineering.

Well, with respect, that's the entire dispute between the EPA and SF.

What I'm saying is that I think it would be reasonable policy and a reasonable interpretation of the quoted statutory clause for the EPA to require polluters change their discharge methods, if overall pollution in their primary discharge environment exceeds a set limit.

To clarify, I surmise but want to confirm, this was intended to mean that, under those conditions, the EPA can require polluters to change their discharge methods going forwards.

If so, I agree wholeheartedly. The EPA can restrict existing sources of pollution, provided that it gives polluters a specific limit of pollutants to which they must comply in the future.

That is not what the EPA proposed to do here, which is why even San Francisco sued over it.

Yes, I was referring to the EPA needing/having the ability to restrict future permitted pollution by regulated actors, in response to observed overall pollution levels, as a condition of granting said permits to pollute. I should have been more clear I wasn't commenting on the specific case.

That would be an excellent way to run the EPA. Alas.

Skimming the opinions, Barrett writes the dissent joined by the three liberals (is this a common lineup? I thought Barrett was normally more libertarian than Roberts) and has the better of it if you treat it as a straightforward statutory interpretation case. The majority are right that this could lead to an absurdity (although it doesn't seem to in the instant case - if the facts are as stated then in this case the poor water quality was caused by San Francisco discharging sewage.) But the Constitution gives Congress the power to pass bad laws, and I think Barrett is right that in this case they did.

Barrett writes the dissent joined by the three liberals (is this a common lineup? I thought Barrett was normally more libertarian than Roberts)

Here's Blackman of the Volokh Conspiracy on Barrett's "slide to the left".

Reading this makes more sympathetic than ever to anyone in the Justice that needs to interpret Supreme Court rulings. Basically, the majority opinion has three parts:

  • Part I: 5 for (Roberts, Alito, Gorsuch, Thomas, Kavanaugh) - 4 against (Barrett, Kagan, Sotomayor, Jackson) overturns the Ninth Circuit ruling
  • Part II: 8 for -1 against (Gorsuch!? And no explanation), overturns the ruling
  • Part III: 5-4, same distribution as Part I, overturns the ruling

Supposedly, the fact that Gorsuch didn't join part II, but everyone else did, would make this a plurality opinion (5-1-4?). However, that would only make sense if the Barrett et. al dissented in part, but their agreement with Part II doesn't mean that they agree with the majority ruling, only that agree with logic in part II, which apparently has no relevance to the overall ruling, so therefore it's not a dissent in part, its simply dissent, and Gorsuch is in fact dissenting in part, because he agrees with the rest of the opinion?

In other words, Part II didn't matter much at all, and 5-4 is the net distribution.

Did Barrett "slide left" or was she always a centrist who Trump picked because she was a woman who was sound on abortion?

I don't know the answer - her Wikipedia article implies that her legal scholarship was strikes-and-balls formalist.

She was also up for the seat that RBG vacated and had to be confirmed in a hurry with no margin for redos.

Barrett has been a moderate conservative on non-social issues for her entire time on the court.

I'm not sure either, but "woman who could be relied upon when it came to social issues" (ie abortion, gender stuff, religious freedom, etc...) was my interpretation of her nomination as well.

Scenario 4: EPA gives to San Francisco a permit saying that (1) SF can't discharge untreated sewage into the ocean, because that might cause the ocean to become polluted, and (2), if the ocean becomes polluted, SF will be punished. SF obeys the discharge restriction. If the ocean becomes polluted later on (due to the actions of some entity other than SF, or due to changes in ocean currents), SF can be punished by EPA for that pollution, in the amount of multiple billions of dollars, even though it did nothing wrong.

I don’t think this is the right interpretation of what is happening here. If San Francisco discharges no untreated sewage at all, then they can not be punished for the quality of the water, because they would not be contributing any pollutants to it.

This is sort of nitpicky and pedantic because no city discharges literally zero pollutants, but it makes more sense than you’re giving credit in the regulatory scheme of the Clean Water Act. There is a general prohibition on the discharge of all pollutants (33 U.S.C. 1311(a)) unless specifically exempted or permitted.

I think a lot depends on how likely it is that SF was causally responsible. For example, if the EPA said to SF in 2011: "We have detected trivially elevated concentrations of Cs-137 in the Pacific near your city, so we will punish you for that", that would be absurd, you would just punish them for sharing an ocean with Fukushima.

If it had been clear that the EPA imposed both restrictions on the easily controllable (e.g., the quality of the wastewater) and the environmental outcome, then that would be a-ok with me. If a teacher says "to pass my class, you have to do well on your homework and the final test", then I would not be overly sympathetic to a student who did the homework and failed the test -- they knew that the test was coming and that the homework might not be enough preparation for them.

On the other hand, if the environmental goal had not be previously mentioned, that would feel unfair. If a teacher said "to pass my class, you just have to do well on your homework" and then had their students take a test to pass because "if you did your homework, you will probably be fine", that would be deeply unfair.

I think a lot depends on how likely it is that SF was causally responsible.

IME, that isn't how it works in environmental law, particularly when you get to what happens if an endangered species is found on your land (as was satirized by The Simpsons with the screamapillar.) I vaguely remember hearing about a case where a guy got caught in a Catch-22 because he had two endangered species on his land, one of which was preying upon the other (failure to protect the prey species was a punishable offense; any measures taken to protect the prey species were also a punishable offense, vis-à-vis the predator species).

that would be deeply unfair

What does fairness have to do with law?

I think a lot depends on how likely it is that SF was causally responsible.

Determining that someone is causally responsible takes work. Far simpler to look at the pollution and say "it doesn't matter whether you're causally responsible". Yes, the government probably wouldn't levy a penalty for radiation from Fukushima, but it would be because they haven't chosen to do so, not because they aren't allowed to.

I would argue that if you want to align rational entities through punishment, it is crucial to establish likely causal pathways.

Suppose for a minute that we cheapened out on criminal investigations. Instead of autopsies, forensics, jury trials, appeals, we would just a cop to the murder site, and that cop would be tasked with thinking for five minutes who the likely culprit is, then shoot them.

Moral considerations aside, I would argue that this would be much worse for setting incentives against murder. To get away with murder, you would simply have to outwit a cop for five minutes, which you can do reliably by not being caught at the murder scene. By contrast, nobody would report murder victims, because the risk of being the likeliest suspect would be too great.

Instead, civilization really detests murder, and is willing to spend extraordinary amounts to find murderers.

The other extreme are trivial infractions, where strict liability is more common. If you are caught driving with a broken tail light, you are on the hook for that. Nobody cares to investigate your claims that of course you checked that all your lights were working before starting the car, and that your evil neighbor inserted a light bulb on the verge of failing to frame you. The reason we do this is because the punishment is mild, and a thorough investigation and jury trial would cost much more than whatever the fine is. If the punishment for a broken tail light was death, then people would actually have incentives to frame their neighbors and we would have to investigate these cases as carefully as murders to prevent bad incentives.

Given that we are talking about a SCOTUS case here, it seems to me that the likely fine would be of an order of magnitude that spending a few millions on establishing causal relationships would not be a huge deal, even if one does not go for the 'beyond reasonable doubt' standard.

I would argue that if you want to align rational entities through punishment, it is crucial to establish likely causal pathways.

And if you're an ideologue who believes that companies are evil, you want to punish them, period, so punishing them for things that they didn't cause doesn't seem so bad.

Moral considerations aside, I would argue that this would be much worse for setting incentives against murder.

Your scenario makes it easier to punish suspects in some ways (no trials) but harder in others (the suspects can get away if they can last five minutes). So a cop who just wants to punish people on a whim wouldn't like it. The EPA scenario only makes it easier; if the EPA wants to be able to punish companies on a whim, it's great for them.

Instead, civilization really detests murder, and is willing to spend extraordinary amounts to find murderers.

Then why is the clearance rate for murder cases in America around 50%?

Partly “Innocent until proven guilty” and partly because communities which have the most murders also have the highest reluctance to talk to the police.

Okay, "SF can't discharge untreated sewage beyond the limits prescribed in this permit (which are made necessary by its combined sewer system) into the ocean".

"Federal Government Requires City to Upgrade Creaky, Dirty, Outdated Sewage Treatment System" is not a banger headline likely to inspire outrage.

Federal Government requires city to upgrade outdated sewage treatment system, but won't tell them in advance what quantitative target they need to meet in the new one, so they might spend millions and still be fined over it?

I'm all for mandating an upgrade, but you've got to tell them what the target is.

This throwaway account is constrained to comment only on matters that are related to civil engineering.

Which account do I have to ping to get your opinions on law and politics?

This throwaway account may lose its reason for its own separate existence in a few years. Until that time, however, its existence will remain separate.

Don't worry JD your secret is safe with us.

Drats, foiled again!

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