Legal Docket: Disputes with government agencies

NICK EICHER, HOST: It’s The World and Everything in It for this 21st day of October, 2024. We’re so glad you’ve joined us today. Good morning! I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. It’s time for Legal Docket.

Today two oral arguments the Supreme Court considered last week.

One’s an immigration matter. The other deals with the power of a federal agency, the first big regulatory case this term. And we’ll start there.

The Environmental Protection Agency—the EPA —sued the city of San Francisco for dumping billions of gallons of sewage into San Francisco Bay and the Pacific Ocean.

EPA says the city let its sewer infrastructure fall into disrepair, so its wastewater system can’t cope.

EICHER: Bruno Heidrick knows that first hand. He lives in a houseboat along the waterway. He told CBS News in May:

HEIDRICK: It’s foul. It’s just not, you know, if you swim in this water, you’d better take a shower afterwards. You get needles, you get syringes, you name it. I think it’s just beyond help. It’s frustrating.

That’s what the EPA is designed to protect people like Heidrick against. The agency regulates water quality and discharges by way of the National Pollutant Discharge Elimination System. That’s the entity that issues permits outlining conditions for treating and discharging wastewater.

REICHARD: Here’s the backstory.

After heavy rainfall, San Francisco’s water treatment facilities tend to get overwhelmed. The untreated sewage gets pumped into the creek where Heidrick lives, then flows into the bay and ocean.

EPA set limits on how much dirty water can be handled that way. Then a few years ago, the agency added a tougher new rule: Quoting from it: any discharge must “not cause or contribute to a violation of any applicable water quality standard for receiving waters.”

EICHER: Receiving waters, meaning the creek, bay, and ocean.

But San Francisco argues that’s just too vague. It’s not fair to hold the city responsible for polluted beaches when that pollution may have come from who-knows-where. It’s arbitrary.

At the Supreme Court, Deputy City Attorney Tara Steeley says permit holders don’t know what they need to do to comply.

STEELEY: And if I could provide an example of that. One of California's water quality standards is no objectionable algae bloom should form in the water body. San Francisco doesn't know how it must control its discharges to prevent that condition from forming in the water body. And we can't know because whether a condition will form in the water body will necessarily depend on what other permit holders or other non-point sources are adding to the water body and the flow of the water itself. What San Francisco can control is our own discharges. We cannot control the receiving water conditions.

REICHARD: But the EPA argues if its language is vague, it’s San Francisco’s own fault. Here’s EPA’s attorney, Assistant Solicitor General Frederick Liu:

LIU: I want to be clear about the sort of information that we’re missing that makes it impossible for us to impose anything other than these generic limitations. It’s not information about the water. It’s information about San Francisco’s own sewer system. We're talking about where do the flows go? What's the conditions of the pipes and the pumping stations? How does the system respond to wet weather events? That's the information that we've been lacking for the past 10 years and that we asked San Francisco to provide as part of the long-term control update. 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.

EICHER: So, the generic rule at issue here is reasonable, given the city’s lack of cooperation.

Justice Elena Kagan made a point about regulations in general. Here she addresses Steeley for the city.

KAGAN: There are lots of different kinds of regulations in the world. Some people like some kinds; some people like other kinds. Some regulations are really prescriptive, do this, this, this, and this. And then, you know, some people hate those kinds of regulations. They'd rather have regulations that are less prescriptive, that say here's the goal, you decide how to meet it. That gives a party more flexibility and so forth. So,there's got to be something in this statute that tells you that the agency can't decide to go the less prescriptive, more flexible "you decide how to meet it; this is the goal" route, and I don't see anything in this statute that does that.

STEELEY: So I disagree, that this provides a flexible standard…

REICHARD: Round and round they went, for more than an hour and a half.

Steeley for the city pointed to the monster penalties EPA imposes:

STEELEY: My colleagues here have calculated the numbers for the amount sought in the litigation for the Bayside permit and it comes to $10 billion. That's the statutory penalties for the days at issue.

EICHER: Liu for EPA wasn’t backing down:

LIU: I think San Francisco actually knows well what it can do to improve its own sewer system. I mean, San Francisco is an outlier here.

Court watchers noted the irony: San Francisco is one of the most liberal cities in the country, its leaders vocal about environmental concerns, yet its infrastructure has decayed to the point the city cannot handle basic services. And now it asks the high court to protect it from overreaching regulators.

REICHARD: Lest we think it’s only San Francisco that let its infrastructure go by the wayside, wastewater agencies in Peoria, Illinois, Indianapolis, Louisville, Tacoma … all filed friend of the court briefs in support of San Francisco.

This is a big mess. City Attorney David Chiu claims if San Francisco doesn’t prevail, it’ll have to spend lots of money on capital improvements. And he says in the worst case scenario, that’ll mean people could see their water and sewer bills go more than ten-fold … from around $850 per year to nearly $9,000!

EICHER: Alright, on to the second case today, the immigration dispute.

In this case, an American citizen named Amina Bouarfa is married to a non-citizen and Palestinian who was granted a visa to stay in the U.S.

But a few years later, the Citizenship and Immigration Service determined her husband had previously married just to evade immigration laws—in other words, a “sham marriage.” Based on that, the agency said it made a mistake granting the visa and so rescinded it.

REICHARD: So Bouarfa, the current wife, appealed the revocation. But she lost at every level on the grounds that the decision to revoke was a discretionary action. Meaning, the agency can choose among different courses of action based on law and other factors. It isn’t strictly bound to a single outcome. In those situations, a court has no power to review.

By law, federal courts can only review mandatory decisions: Ones not left to agency discretion. Congress did not want those to be second-guessed in the courts.

EICHER: The wife’s lawyer argued she ought to get a court review because the “sham marriage” determination was a mandatory decision that revoked the visa. Listen to lawyer Samir Deger-Sen:

DEGER-SEN: The government believes that Congress enacted a sham-marriage bar that was this fundamental restriction that was so important it couldn't even --an application couldn't even get off the ground. The idea that then the very next day, Congress would have thought, actually, it’s optional, the agency has discretion, it can get to do whatever it wants and the thing which triggers the agency’s discretion is the agency made a mistake. Because the agency made a mistake, suddenly, it’s important for the agency to get discretion.

What’s odd is if the visa had been denied initially on grounds of a sham marriage? Both sides agree that the wife could challenge it.

But now we’re a step beyond: visa granted, then revoked.

And generally speaking, the decision to revoke is not mandatory. It’s discretionary, because it can happen when the agency believes there is “good and sufficient cause.” The very essence of discretionary.

Assistant to the Solicitor General Colleen Sinzdak had a delicious way to explain it:

SINZDAK: And so if I can just give kind of my own child hypothetical. If I tell my daughter that she may have dessert after dinner every night, she has discretionary authority to decide whether to have dinner --whether to have dessert. As a practical matter, she is going to eat dessert every single night. (Laughter.) I can assure you of that. But I have given her discretionary authority. And so, if there was a judicial review bar, it would cover.

KAGAN: But --but your daughter would be able to tell you: I have a policy of giving --of having dessert. So I'm asking, do they have a policy of --of always revoking?

REICHARD: Just last term, the court decided another immigration case. It said an American citizen cannot challenge a visa denial for her alien spouse, after the Department of Homeland Security determined he was a member of a gang.

So I have my doubts that the wife is going to win this one.

The appeals courts have ruled differently so the Supreme Court is going to need to resolve it and bring a national standard.

And that’s this week’s Legal Docket.

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