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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.
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.
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.
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