San Francisco city leaders may, yet again, be looking to the conservative-majority Supreme Court to do their bidding, in this case pushing back on the Environmental Protection Agency (EPA) when it comes to wastewater and storm discharge into the Pacific Ocean.

Back in May, the EPA, state Attorney General, and SF Bay Regional Water Quality Control Board hit the City of San Francisco with a lawsuit. The suit contends that SF has been guilty 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 suit further 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."

We knew that the case was already taken up by the Supreme Court. Now, via the Chronicle, we get some sense of how the City Attorney's Office plans to counter these claims, and the arguments amount to 1) "It's not just us dumping stuff in the ocean, and 2) "We are following all the guidelines, but you're now changing them."

Deputy City Attorney Tara Steeley, in a new filing with the Supreme Court — which agreed to hear the case back in May —makes an argument via a metaphor about chefs, line cooks and soup. In this case, the EPA is the chef, cities are the cooks, and the ocean is the soup.

The EPA can limit the levels of specific pollutants coming out of sewage treatment plants, but it can't then vaguely complain about the ocean quality and hold a city responsible for that. In the metaphor, a chef can offer a set of ingredients and quantities to cooks, but can't then vaguely complain that the soup is "too salty" based on those instructions.

Steeley writes that the EPA "has gone off-recipe, telling dischargers that they are once again responsible for the quality of the soup, rather than their individual additions to it."

Steeley further argues that other municipalities are also contributing to the overall discharge reaching the ocean, and San Francisco shouldn't be blamed, alone, for the resulting water quality.

The suit, which is looking fine San Francisco hundreds of millions of dollars in penalties, contends that, since 2016, the city has discharged an average of 1.8 billion gallons of sewage every year, some of it untreated.

We have anecdotal evidence that trash and debris was showing up on Ocean Beach after heavy rains this past winter, which may or may not have been debris flowing through the combined stormwater and sewer pipes. The SF Public Utilities Commission argues it was not, and the trash appeared there some other way.

“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 May 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, along with other cities that are expected to file amicus briefs in the case, argue that the EPA has made water quality rules a "moving target," and that this is unfair.

Much like in the Johnson v. Grants Pass case earlier this year, in which San Francisco filed an amicus brief in support of Grants Pass, Oregon with regard to laws against homeless encampments, the city is likely to find some sympathetic ears on the high court in this case.

Already in a couple of cases, the conservative justices have shown a willingness to disempower and even kneecap federal agencies, especially the EPA. This is part of larger, long-term conservative legal project that has been ongoing for decades — one that sees government agencies as too big and too empowered, hindering business and making their own rules outside of Congress's lawmaking.

The case involving San Francisco won't be heard at the Supreme Court until sometime in the fall, or possibly next spring.

Previously: SF’s Water Pollution Lawsuit Against the EPA Is Heading to the US Supreme Court

Photo: Jesse Gardner