• A rapidly spreading brush fire erupted in Solano County Friday afternoon, burning 167 acres. Crews stopped the progress and had 30% of the fire contained around 4 p.m. [KGO]

• Novato-based Thompson Builders announced plans to build a 258-unit apartment building at the long vacant 360 Fifth St site in SF’s SoMa District, which SFGate coined “trash lake.” The new plans, which include a 244-foot-tall tower facing Fifth Street and two three-story structures along Shipley and Clara streets, will feature studios and one- and two-bedroom apartments. [SF Business Times]
• An official in San Mateo County’s Environmental Health Services division, Kian Hanohano Atkinson, 47, of Foster City, pleaded not guilty to charges that he allegedly embezzled $800,000 over eight years by issuing fake permits and diverting funds to his personal bank account. [KRON4]
• 48 Hills says that the Chronicle’s recent reporting on parents’ supposed criticism of SFUSD’s ethnic studies curriculum is relying too heavily on misinformation provided by Parents Defending Education, the rightwing group spearheading attacks against the class. [48Hills]

National:

• Washington DC officials are suing the federal government over its current attempted takeover of the city’s law enforcement. The presiding judge, US District Judge Ana Reyes, said the law likely doesn’t allow Trump full control over city police entirely, but it probably gives him more authority than local leaders want. [Associated Press]
• A man fleeing an ICE raid at a Home Depot in Southern California was killed when he entered the freeway and was struck by a car. [CNN]
• Several climate scientists and environmental groups are suing the EPA over its new report on climate change, which is reportedly full of inaccuracies and cherry-picked information. [CBS News]

Video of the Day:

Enjoy some vintage footage of Plennie L. Wingo, “The World’s Backward-Walking Champion,” moseying his way in reverse through Fisherman’s Wharf back in 1978.

According to the video caption, Wingo started walking backwards as a way to earn money for his family during the Great Depression. The video’s narrator says Wingo once walked backwards across the country from Santa Monica to Boston then across Europe. He was arrested the minute he entered Turkey because he looked a bit suspicious.  

There have been some new developments surrounding the fire that raged at the Moss Landing Battery Plant in January and reignited in February, including a community survey, warnings from the EPA about potential flare-ups, and Erin Brockovich helping residents in a lawsuit, and new legislation.

The January fire at the battery plant in Moss Landing caused the evacuation of 1,200 residents, and the community has since been dealing with ongoing side effects, including headaches, nausea, and sore throats. According to KSBW in Monterey, the Health Departments of Monterey, San Benito, and Santa Cruz Counties are currently conducting a community survey in collaboration with the California Department of Public Health about the fire's impact on residents' health, which ends on Friday.

The EPA issued a warning that there's still the potential for more flare-ups at the plant as workers continue to clean up the site and delink the batteries that caused the initial fire. Officials at the plant said that a private fire company and air resource monitors are watching the site around the clock.

Additionally, Mercury News reports that famed environmental activist Erin Brockovich is working with a San Diego law firm to represent the residents of Moss Landing against Vistra Corp, the company that owns the plant, as well as other defendants, including PG&E, which operates another energy storage facility at the Moss Landing plant.

Although Vistra says testing of the air, soil, and water in the area show no risks to public health, Brockovich thinks the company is concealing information. The lawsuit claims that the amount of cobalt, manganese, nickel, and copper in the preliminary state data exceeded federal EPA risk levels for residential soil. The lawsuit also alleges that the facility’s fire-suppression system was deficient.

Brockovich also told Mercury News that the state's rush to implement cleaner energy standards could be exacerbating the problem:

I’m concerned that in our quest to do something good, we’re not going to do it right. And then we’re going to have something bad — more fires. If you get fires like that in any Santa Ana wind condition, you could have a much larger, uncontrollable scenario.

The state is pushing through in haste, to hurry. They’re not going to catch their mistakes, and we’re going to have a bigger problem.

Mercury News notes that a dozen more battery plants are being planned in California, which raises concerns about the health and wellbeing of residents near these new facilities. A new bill has been introduced by Assemblywoman Dawn Addis, D-Morro Bay, (AB 303), which would ban new battery storage plants from being built within 3,200 feet of homes, schools, businesses, and hospitals.

Image: Sgerbic/Wikimedia

Previously: Yet Another Battery Fire at Monterey County’s Moss Landing Power Plant, Just 33 Days After Its Last Battery Fire

San Francisco won out and had some strange bedfellows supporting it in a lawsuit that reached the Supreme Court last year about the Environmental Protection Agency's power to regulate ocean water standards.

The Supreme Court ruled 5 to 4 Tuesday in favor of San Francisco, with the majority deciding that the EPA could impose specific requirements on a city or other entity, but it can not deem them responsible for the overall water quality in their surrounding area. Justice Samuel Alito wrote the majority opinion, with the four male conservatives joining him, Justice Neil Gorsuch only in part. Justice Amy Coney Barrett wrote the dissent, with the three liberals joining her.

It was a somewhat complicated argument, but the gist is that the City of San Francisco was facing harsh criminal penalties from EPA due to new "narrative guidelines" added in 2019 that held the city responsible for overall water quality off the coast, in the Pacific. The city argued that it had been following the EPA's guidelines to the letter when it came to discharging wastewater and storm runoff into the ocean, and it complained that the EPA's guidelines may not be specific enough if the agency was still imposing fines.

The EPA accused the city of "repeated and widespread failures to operate its two combined stormwater-sewer systems and sewage treatment plants in compliance with the law and its permits, and in a manner that keeps untreated sewage off the streets and beaches of San Francisco."

The lawsuit mentioned sewage that ended up in Mission Creek due to the stormwater-sewer system, including visible toilet paper, and as the New York Times notes, Justice Barrett quoted this section in her dissent. She wrote that the need for holding cities generally responsible when the overall water quality changes "is on display in this case — discharges from components of San Francisco’s sewer system have allegedly led to serious breaches of the water quality standards, such as 'discoloration, scum and floating material, including toilet paper, in Mission Creek.'”

In the city's oral argument back in October, Deputy City Attorney Tara Steeley compared the EPA's rules and penalties to a chef delegating cooking to a team of sous chefs, giving them a recipe to follow, and then complaining when the recipe turned out too salty. They also argued that other municipalities contributed to the overall water quality in the Bay and ocean, but SF was being penalized for it.

The conservative majority was inclined to agree, with Justice Alito saying that the EPA's narrative requirements were too general.

"When a permit contains such requirements, 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," Alito wrote in the decision.

San Francisco took pains to say that it had no problem with complying with the EPA's guidance, but that the guidance needed to be more specific.

But environmental groups now worry that the ruling could have sweeping implications for how municipalities and corporate polluters challenge EPA regulations, with potentially disastrous consequences for water quality.

"This will have an impact throughout California and throughout the country," said Eric Buescher, managing attorney for SF Baykeeper, speaking to ABC 7. "The city has provided a blueprint to other municipalities to industrial entities that discharge pollutants into water bodies as to how to avoid accountability or restrictions on their conduct."

Previously: San Francisco Has Its Day at the Supreme Court In EPA Case, Conservative Justices Seem to Side With City

Photo: Ian Hutchinson

The City of San Francisco finds itself in an odd position arguing a case before the Supreme Court that seeks to push back on the way the Environmental Protection Agency enforces the Clean Water Act.

At issue is how much "effluent," or mostly untreated wastewater, the City of San Francisco is allowed to discharge into the Pacific Ocean, particularly during rainstorms when the city's combined rainwater and sewage system becomes overwhelmed. We learned back in May that a battle between San Francisco and the EPA was headed to the Supreme Court after the Ninth Circuit had sided with the federal agency, after San Francisco had sued over what it says are too-vague guidelines over which it is now facing fines.

Deputy City Attorney Tara Steeley has taken the lead on the case, and made the arguments before the high court on Wednesday. As Steeley previously explained in a filing with the court in July, the EPA is acting like a head chef who hands a cook a recipe, and then complains when the recipe is followed that the soup is too salty.

Although the city is also complaining that the recipe itself isn't prescriptive enough, and it would like the EPA to clarify its guidelines so that the city may follow them.

As CNN explains this week, the trouble dates back to 2019, when the EPA added "narrative" guidelines that say the city's discharges may "not cause or contribute to a violation of any applicable water quality standard… for receiving waters."

A lawsuit was filed earlier this year that accuses San Francisco of "repeated and widespread failures to operate its two combined stormwater-sewer systems and sewage treatment plants in compliance with the law and its permits, and in a manner that keeps untreated sewage off the streets and beaches of San Francisco." But the city had already sued the EPA two years earlier over the guidelines, the Ninth Circuit ruled in favor of the EPA in July 2023, and now here we are.

The Ninth Circuit ruling said that the EPA has "broad authority to impose limitations necessary to ensure the discharger’s adherence to any applicable water quality standard." But the conservative-majority Supreme Court has spent the last two years chipping away at the power of federal agencies, including the EPA, and this case could have further, broad implications for the enforcement of the Clean Water Act.

SF Supervisor Myrna Melgar isn't very comfortable with that, as she tells CNN. "I’m very nervous about going to the court. We run the risk of having it apply to everybody," Melgar said.

But the city pushed forward with the suit, and as in the case of the Grants Pass case on homeless camping, the city has some strange bedfellows here in appealing to the conservatives for its own self-serving reasons.

As the New York Times reports, Justice Brett Kavanaugh and Justice Clarence Thomas seemed receptive to San Francisco's side in the case. And as law blog Mintz notes, Justice Samuel Alito will likely do everything in his power to kneecap the EPA, as he did writing for the majority in 2023's Sackett v. EPA. Alito did not seem particularly sympathetic to notion of "narrative standards" like the one the EPA issued for San Francisco.

Justice Amy Coney Barrett asked the EPA's attorney, Frederick Liu, whether the agency had ever levied significant fines on a city based on a narrative standard, and he said he wasn't aware of any such fines.

Liu further contended that San Francisco had not provided the EPA with details it requested about the city's combined wastewater system functions.

"Without that information, we’re basically flying blind as to how we’re going to tell exactly what San Francisco should do to protect water quality," Liu said, per the Times.

Justices Elena Kagan and Sonia Sotomayor did the majority of the questioning of Steeley on Wednesday, and they are both likely rule in favor of the EPA. But as many have noted, the Supreme Court's majority signaled its extreme stance on government agency power this past summer when it struck down the 40-year precedent of "Chevron deference," referring to a 1984 case that established that courts should defer to federal agency experts, rather than themselves or legislators, on issues of complex regulations and how they're applied.

So, chances are pretty good that this case will swing in SF's favor, and the EPA will be forced to clarify its guidelines — although this could mean a domino effect of other municipalities and corporations challenging the validity of Clean Water Act guidelines that they're expected to adhere to. That wasn't SF's goal with this suit, but that may indeed be the outcome.

Previously: San Francisco Argues In Supreme Court Lawsuit That It Isn't Discharging That Much Untreated Waste Into Ocean

Photo: Ian Hutchinson

The EPA, state Attorney General, and SF Bay Regional Water Quality Control Board just dropped a combined lawsuit onto the City of San Francisco, claiming the city has allowed “more than 1.8 billion gallons of untreated sewage” to flow each year into the Bay and Pacific Ocean

We noted a couple times over the course of this year’s winter months that trash was appearing of SF beaches after heavy storms, which is regrettably a normal occurrence after significant rainfall, and that partially treated sewage could be intermingled with this trash. That may have been because the city’s combined sewer system outflows put rainwater runoff and treated sewage into the same flow, and that could accumulate some trash when the pipes are particularly backed up.

But the SF Public Utilities Commission (SFPUC) pushed back against the assertion that trash was flowing out of their outflows, with a spokesperson telling SFGate in January that those outflows “did not have any of those types of outfall discharges near Fort Funston or Ocean Beach during the storms last weekend,” and that “Trying to blame our system for trash in those locations appears to be inaccurate.”

Yet now the SF Examiner reports on a new lawsuit from the EPA, California Attorney General, and SF Bay Regional Water Quality Control Board that accuses the city of allowing sewage to flow into the SF Bay And Pacific Ocean, and alleges that the outflow system is in disrepair.

The full lawsuit accuses SF of “repeated and widespread failures to operate its two combined stormwater-sewer systems and sewage treatment plants in compliance with the law and its permits, and in a manner that keeps untreated sewage off the streets and beaches of San Francisco.” It also alleges that “The City’s failures to comply with its permits or properly operate its system significantly increases the risk that members of the public, including, for example, surfers, swimmers, and others recreating on beaches, unknowingly come into contact with untreated sewage, which contains pathogens and high enterococci and E.coli bacteria levels.”

The suit additionally claims that SF has allowed an average of 1.8 billion gallons of untreated sewage to flow into these water bodies each year since 2016.

“San Francisco’s aging wastewater system has exposed the public to risks for too long,” SF Bay Regional Water Quality Control Board chair Alexis Strauss said in a press release announcing the lawsuit. “This is the time to commit to an outcome which reduces sewage overflows and builds upgraded wastewater infrastructure. Our goal is to help San Francisco achieve a healthy Bay and coastline, which can be enjoyed by millions of residents and visitors every day."

The city operates two wastewater treatment plants in the Bayview District, plus one near Lake Merced, which some jokers tried to get named after George W. Bush in a 2008 political stunt.

For their part, the SFPUC told the Examiner that the lawsuit would be “costly and unfair” to SF taxpayers. SFPUC spokesperson Nancy Crowley also told the paper that “Partnership and support from the federal and state government would be more helpful than costly and counterproductive litigation.”

The SF City Attorney’s Office was also displeased with the lawsuit. “The EPA prefers to threaten communities with enormous fines and costly litigation in lieu of working in partnership with the nation’s cities,” spokesperson Jen Kwart told the Examiner. “SFPUC stands ready to work collaboratively with EPA to achieve cost-effective solutions, just as it has for the past seven years.”

This is not the only lawsuit against the city regarding wastewater treatment, but it may be the most serious. The environmental group SF Baykeeper sued the city in March for allegedly allowing wastewater to flow into Mission Creek; and last August, a group of homeowners (including former 49ers QB Joe Montana) also sued the city for storm drain overflow that they claimed brought untreated sewage water into their homes.

Related: Trash and Debris Showing Up Again On SF Beaches, As It Often Does After Rainstorms [SFist]

Image: SFPUC

In just a week's time, the conservative-led Supreme Court — more the Alito Court than the Roberts Court at this point — has made itself Enemy Number One of the Democratic Party, and of women, LGBTQ people, climate activists, and liberals generally.

On Thursday, as the court closes out its 2021-22 docket and as Justice Stephen Breyer retires with his middle fingers held high on his way out the door, the court issued a ruling that kneecaps the Environmental Protection Agency at a moment in history when this is the last thing they should be doing. It was the last in a string of blows to both the will of the people and to decency in general, but Alito and Thomas et al will just tell you it's about strict textualism and the fact that the framers didn't want things this way — because human-created climate change was surely at the top of mind in 1788. A dissenting opinion from the court's liberal wing argues that there is nothing textualist about this decision — it's just pure conservative politics and the desire to limit the administrative powers of the federal government.

What did California Governor Gavin Newsom do in response? It's not clear where he is as many people are beginning their five-day holiday weekends — maybe near Tahoe? But he went up to some fire-charred woods and shot a quick video, posted Thursday morning to Twitter, slamming the court's decision, and saying to climate deniers, "If you don't believe in climate change, you've got to believe your own eyes. Come to California."

Chief Justice John Roberts delivered the majority opinion in the case, known as West Virginia v. EPA though the plaintiffs also include the North American Coal Corporation, Westmoreland Mining Holdings, and the state of North Dakota. For all the even-handed-sounding legal rhetoric that Roberts imbues in the ruling, discussing arcane rules and precedents regarding congressional acts and the powers of government agencies, the result is clearly another win for Mitch McConnell and the Republicans' five-decade project to finally secure a conservative court majority to do their bidding. And it's a win, clearly, for West Virginia's coal industry, and polluters nationwide.

As Justice Elena Kagan writes in a dissent, the climate-action rule put in place at the end of the Obama administration, which this ruling concerns, known as the Clean Power Plan, was already moot by the time Biden took office last year — and this is just some clear conservative activism to kneecap the EPA overall, much like Trump briefly tried to do, just now enshrined in legal rhetoric.

Kagan takes aim at the majority's use of the term "major questions doctrine," which is used to describe whether the EPA overstepped in creating a rule that pushed for a shift away from more-polluting forms of energy generation to combat climate change. "The current Court is textualist only when being so suits it," Kagan writes. "When that method would frustrate broader goals, special canons like the 'major questions doctrine' magically appear as get-out-of-text-free cards."

And, she concludes, "The stakes here are high. Yet the Court today prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions. The Court appoints itself — instead of Congress or the expert agency — the decisionmaker on climate policy. I cannot think of many things more frightening."

Much as the court's ruling on concealed-carry weapons last week has implications in California, so too does this ruling, which could lead to battles over cap-and-trade programs and more. The Trump hangover is long, and it is painful.

Following through on President Trump's promise to his base to call California to task for its homeless problem, recently appointed head of the Environmental Protection Agency, Andrew Wheeler, sent a letter to Governor Newsom today threatening punitive action for "significant" air and water quality problems in the state.

"The EPA is aware of the growing homelessness crisis developing in major California cities, including Los Angeles and San Francisco, and the impact of this crisis on the environment," Wheeler writes in the letter. "Indeed, press reports indicate that 'piles of feces' on sidewalks and streets in these cities is becoming all too common. The EPA is concerned about the potential water quality impacts from pathogens and other contaminants from untreated human waste entering nearby waters."

As the New York Times reports, Wheeler is giving California 30 days to respond to a series of accusations, one of which suggests that San Francisco regularly dumps sewage into the Bay and the ocean. Wheeler also makes note that the state has received $1.16 billion in federal water funds over the past five years, implying that these funds might be in jeopardy.

Per KPIX, the letter includes the assertion about "the City of San Francisco’s years-long practice — allowed by the CalEPA — of routinely discharging more than one billion gallons of combined sewage and stormwater into San Francisco Bay and the Pacific Ocean on an annual basis."

Last week it wasn't human waste that was of primary concern to Trump in some casual remarks, it was hypodermic needles on the streets getting washed somehow into the ocean. As Mayor London Breed quickly responded, this isn't possible with SF's current drain and sewer systems. "To be clear, San Francisco has a combined sewer system, one of the best and most effective in the country, that ensures that all debris that flow into storm drains are filtered out at the city’s wastewater treatment plants. No debris flow out into the bay or the ocean," she said in a statement last week.

Wheeler's letter contradicts Breed, suggesting that San Francisco's combined stormwater discharges "do not receive biological treatment" and therefore could contain human pathogens.

Senator Dianne Feinstein also responded to Trump's comments, telling him to "work with us, not against us" on homelessness, and saying it is a national problem, not a state one.

Also it's highly suspect that Wheeler is questioning California — a national leader in creating tough fuel emissions standards to improve air quality — about its air quality barely a week after Trump was trying to roll back the state's emissions standards. The letter only makes passing reference to air quality, focusing primarily on water contamination.

Is there any doubt that all the concern and purported evidence in Wheeler's letter is just hollow bluster motivated by Trump's political whims — and his desire to shame a state that overwhelmingly did not vote for him?

As Newsom puts it in a tweet, Trump "persistently weaponiz[es] our government to attack political opponents."

It remains to be seen what, if any, actions the EPA plans to take if Newsom does not respond adequately to Wheeler's so-called concerns.

Previously: Trump Threatens San Francisco With EPA Violation Related To Homelessness

While San Francisco still smells of smoke and is coated with ash, the situation appears to have improved Wednesday, with air quality reportedly at a less hazardous level today.

As previously reported, residents of San Francisco, the East Bay, and as far south as San Jose awoke to smoky skies and falling ash Monday, leaving city air so hazardous the residents were urged to stay indoors and avoid physical activity.

As of Tuesday afternoon, KRON 4 reports, areas in the North Bay were still experiencing air quality deemed “very unhealthy” to “hazardous” by the National Weather Service. Air in San Francisco and much of the East Bay was slightly better, clocking in as “unhealthy."

But according to a message sent to San Franciscans via Alert SF, air in the city today had been upgraded, as "SF air quality currently yellow," they said.

No, that doesn't mean SF's still smoggy skies are yellow in color (though, judging from the above timelapse video taken by Curbed SF, you wouldn't be wrong). The designation instead refers to the current Air Quality Index reported by AirNow, the EPA's air quality site.

And yellow, it seems, is good: "Hazardous" air gets a designation similar to Chanel Vamp and "very unhealthy" is a sickly maroon, "unhealthy" is red and orange means "USG," an acronym for "Unhealthy For Sensitive Groups" (the elderly, young children, and the ill). But yellow is "Moderate," meaning that "Air quality is acceptable; however, for some pollutants there may be a moderate health concern for a very small number of people who are unusually sensitive to air pollution." The only thing better than that is "Good," a bright green for those keeping track.

But just because we've gone yellow doesn't mean you should start gulping in great buckety lungfuls of outdoor air, as changes to wind patterns could decrease air quality once again. As noted Tuesday, any one who has trouble breathing as a result of the air should seek medical attention, and you should continue to avoid activity anywhere you can smell smoke.

Previously: Smoke From NorCal Fires Gives SF Gorgeous Sunrise, Health Hazards Galore

Nine percent of California's beaches were unsafe for swimming at some point last year, according to the Natural Resources Defense Council (NRDC)'s nationwide report "Testing the Waters 2014." That's one percent better than the rest of America's bacterial beaches, on average, so woo.

Nevertheless, there are still some beaches in the Bay Area that are, on occasion, not specifically too good (see list below).

According to the report, many local beaches, for example most of Ocean Beach, are generally bacteria-free, but other beaches frequently tested poorly, particularly on the Bay, where the waters are stiller. The NRDC report explains that stormwater pollution and "untreated sewage spills and overflows are also frequently to blame."

The report uses the EPA's Beach Action Value (BAV) safety threshold, which examines bacteria levels (a.k.a. raw sewage and fertilizer runoff) in beach water samples.

Each beach in the report was tested multiple times last year, and the percentage given to each represents the number of times the beach exceeded the EPA's BAV safety threshold last year.

Here's the list of the beaches that the EPA deemed most unsafe for swimming.

• Parkside Aquatic Park (San Mateo County): 64 percent
• Lakeshore Park (San Mateo County): 48 percent
• Candlestick Point at Windsurfer Circle (San Francisco): 47 percent
• Mitchells Cove Beach (Santa Cruz County): 42 percent
• Capitola Beach west of jetty (Santa Cruz County): 33 percent
• McNears Beach (Marin County): 32 percent
• Baker Beach, Lobos Creek at lower parking lot (San Francisco): 28 percent
• Pillar Point near West Point Avenue (San Mateo County): 28 percent
• Kiteboard Beach (San Mateo County): 23 percent
• Candlestick Point at Sunnydale Cove (San Francisco): 22 percent

"The overall trend is that there's a substantial pollution problem," Noah Garrison, staff attorney for the Natural Resources Defense Council's water program, tells SF Gate. You can click through all the test results on the NRDC's report here.

The reason given is that in lieu of the recent energy bill, there's no need to have each state create their own rules, even if their rules are better than the Federal Government's. Or so said head of the EPA Stephen L. Johnson. Johnson's decision, of course, had nothing to do with intense lobbying by car companies, who spent part of last fall crying to Dick Cheney like the little bitches they are. Johnson, actually, had a reputation for not being an Administration stooge (well, somewhat) but we all know what happens when Dick wants something to happen.

The best part of the story is that Johnson's move was made entirely by him all willy nilly-like, without any advising or consenting by the others in the EPA. Johnson's decision was so willy-nillly-like, that he didn’t even send back an official document to Arnie but just posted a note about it on Arnie’s Facebook Wall. His underlings were so thrilled by the choice that they went and did what every other disgruntled employee does-- call the press and let everyone know their boss is a jackass. In a press conference yesterday, Bush defended Johnson's decision and said it was Johnson's decision because if there's anything one jackass likes, it's another jackass.

In response, California is suing the federal government. We'll see how well that goes.