This week, in City and County of San Francisco v. Environmental Protection Agency, the U.S. Supreme Court has created less flexibility for the environmental regulatory agencies in charge of protecting water bodies from pollution. How this will affect regulation of Texas polluters and our region’s waters remains unclear. Learn more about the opinion and how we’ve positioned ourselves to act.
The Supreme Court limits flexibility for meeting water quality requirements
The case focuses on the regulation of water pollution under the National Pollutant Discharge Elimination System (NPDES) permitting program, known in Texas as the Texas Pollutant Discharge Elimination System (TPDES) permitting program. These programs issue permits to public wastewater treatment systems, real estate developers, and industrial facilities, with the aim of preventing pollution from entering water bodies across the country and across our state. The decision focuses on what are called “end result” permit terms. Often used at the request of permit holders, this type of permit term has been used to create more flexibility in how a business or government permitholder meets the requirements of the Clean Water Act. They have also been more difficult to enforce.
In the decision, the Supreme Court requires the EPA to set more precise, source-specific limitations for pollutants moving forward. The dissenting opinion, authored by Justice Coney Barrett, points out several flaws in the majority opinion, including that it may make regulators’ jobs harder and slower and increase pollution into waters nationwide.
Read more about the case here.
Bayou City Waterkeeper is ready to act
The effects of the decision will not be known for some time. The Texas Commission for Environmental Quality will be in charge of implementing any changes needed to the thousands of individual TPDES permits, as they come up for renewal every five years. If implemented correctly, the opinion could actually improve enforcement of some pollution over time by requiring more specific, enforceable, updated limits in permits.
Bayou City Waterkeeper is positioned to monitor and address the impacts of this ruling over time, as we continue our efforts to review and submit comments to TPDES permits. As we push for the amendment of the “MS4” stormwater permit this year, the State of Texas has an opportunity to impose more specific limits on stormwater pollution across Houston and Harris County, which could decrease pollution across our region and increase opportunities to invest in green infrastructure.
Further, if successful, our ongoing efforts to update outdated regulations for petrochemical and plastic industries may enable the creation of stronger, clearer permit terms that are consistent with the Supreme Court’s decision. The Supreme Court’s opinion may also help motivate the Texas Commission on Environmental Quality to make needed updates to the Texas Surface Water Quality Standards in the year ahead. In particular, the non-specific “narrative” standards for nutrient pollution, which have not sufficed to prevent algal blooms, will need to be replaced with a more specific standard, as other states have already done.
Last, the opinion should have no impact on the consent decree requiring the City of Houston to invest $2 billion in our sanitary sewage system through 2036.
Bayou City Waterkeeper protects the waters and people across the greater Houston region through bold legal action, community science, and creative, grassroots policy to further justice, health, and safety for our region. For questions on our legal advocacy, reach out to kristen@bayoucitywaterkeeper.org. For questions on our policy advocacy, reach out to guadalupe@bayoucitywaterkeeper.org.