On March 4th, the Supreme Court voted 5-4 in favor of AGC of America and industry partners in the City and County of San Francisco v. EPA case. The decision helps ensure that permit holders can be certain that following their permit will protect them from enforcement actions.
The case was about so-called “backstop” provisions; generic language that requires the permittee to “not cause or contribute to a violation of any applicable water quality standard.” Instead of spelling out exactly what a permittee must do or not do, these backstop provisions make permit holders responsible for the quality of the water body at large and strip them of the Clean Water Act “permit shield” protections afforded to an entity that adheres to the terms of its permit.
AGC of America partnered with NAHB and ARTBA to file a construction-specific amicus brief to detail the impacts of generic backstop requirements (which the Supreme Court called “end-result requirements”) on the construction industry. Our argument was simple: The Clean Water Act makes the EPA and states responsible for telling permittees what steps they must take to ensure that water quality standards are met. Backstop requirements unlawfully make the permittee responsible for water quality. By failing to provide notice of the actions required to ensure compliance with its permit, the EPA exposed permit holders to unknown risks – including CWA enforcement, criminal penalties, and citizen suits even when they adhere to their permit. The court held that the CWA “does not authorize the EPA to include ‘end-result’ provisions in NPDES permits.”
Not only did the Supreme Court side with AGC’s arguments against the EPA, but the Court made sure to cite our amicus brief specifically. When the EPA argued that businesses that rely on general permits would face disruptive consequences, the Court turned to AGC to dismiss this claim. “[P]ermits are important for certain businesses, such as … construction companies … see Brief for [Associated General Contractors of America] et al. as Amici Curiae 1, 11. [N]o such company has submitted a brief supporting the EPA… On the contrary, a brief filed on behalf of such companies urges us to reject the EPA’s position.”
Furthermore, AGC was able to get generic backstop provisions invalidated without upsetting the longstanding use of descriptive non-numerical narrative effluent limitations in general permits. The Court explained: “What is important, these [construction] companies tell us, are narrative limitations other than [backstop] requirements, and they specifically cite provisions demanding compliance with ‘best-management practices’ and ‘operational requirements and prohibitions.’ Our decision allows such requirements.”
Earlier this year, AGC filed a separate coalition amicus brief asking the Supreme Court to hear the case. The case is City and County of San Francisco v. U.S. Environmental Protection Agency, No. 23-752.
The decision represents a big win for AGC of America and its members. These litigation efforts are supported by the Construction Advocacy Fund. Please consider supporting the CAF to ensure that AGC can continue to fight for our members in the highest courts in the land. For any questions or follow up, please contact Spencer Phillips.