Politicians are wont to say that there are no Democratic potholes or Republican potholes. Alright, fair enough: But what about turds? What about turds … floating offshore? 

Are there Republican floating turds or Democratic floating turds? You’re not going to believe this, but one could argue that, yes, there are. San Francisco, in fact, literally made a federal case out of this. And, lo and behold, we won! 

Last week, San Francisco bested the Environmental Protection Agency in a case that worked its way all the way up to the United States Supreme Court. The city prevailed via a counterintuitive 5-4 grouping; Justice Amy Coney Barrett joined the three liberals, meaning that, for whatever reason, all the male justices favored San Francisco and all the female ones did not.

As you’d imagine regarding a regulatory case, there were a lot of ins, lot of outs, lot of what-have-yous. But, in the end, it all came down to floating turds. As in: The great heap of turds that San Francisco’s antiquated combined sewer system ejects offshore when overwhelmed with stormwater. That’s a sticky situation, but it gets worse: The city claims these turds were politically weaponized, because there really is a distinction between Republican and Democratic turds. 

You may recall the 2019 incident in which President Donald Trump rage-tweeted about homeless people’s excrement and drug paraphernalia washing into the bay, and a lapdog at the EPA followed through by citing San Francisco for pollution. This, it seems, was the germ of the strange and terrible lawsuit in which San Francisco vanquished the EPA, with a who’s who of polluters lined up behind the city, and a who’s who of environmental groups lined up against it.  

“I would bet that most San Franciscans don’t enjoy having untreated shit in their water,” says Supervisor Myrna Melgar, who authored a resolution last year urging the city to avoid handing the Supreme Court a cudgel to further batter the Clean Water Act. Her resolution passed but went unheeded. 

So, here we are: “It makes me ashamed,” Melgar continued. “We’re sooooooooo progressive.”  

But there was nothing progressive about the fines the city was racking up: San Francisco’s Supreme Court win negates proposed EPA penalties in the hundreds of millions of dollars and mandatory sewer system upgrades that would cost billions and billions. These are untenable directives and, for whatever reason, the city and President Joe Biden’s EPA could not come to a mutual agreement to avoid involving the Trump Supreme Court. 

Heck, that’s unfortunate: Dave Owen, a professor specializing in environmental and water law at University of California Law, San Francisco, likened entrusting the corrupted and activist high court with an environmental matter to “bringing in the mafia to resolve a neighborhood dispute.” 

It is, truly, a shame that the city and EPA could not stave off this eventuality. And now the Supreme Court has made us an offer we can’t refuse. Perhaps fittingly, considering the subject matter, nobody’s hands are clean. 

As a result of the city’s victory, several paragraphs will be stricken from the treatise-sized permits governing its wastewater plants. At issue were broad, general clauses that, prior to Trump’s Twitter saber-rattling, had largely gone unenforced. Among them: 

Neither the treatment nor the discharge of pollutants shall create pollution, contamination, or nuisance as defined by California Water Code Section 13050.

The broad clauses, like this, that San Francisco’s successful suit has invalidated are often included in the permits overseeing mining operations or chemical plants. While, God willing, we know most of what’s coming out of the city’s sewer pipes, that’s not the case with regards to washing acres of earth into rivers in a mountaintop mining operation or discharging byproducts from an industrial plant. 

Broad clauses, environmental attorneys say, are a “backstop” against unforeseen water pollution. “And now that tool has been taken away,” says Nick Torrey, a senior attorney with the Southern Environmental Law Center in North Carolina. “This is going to make it much more difficult to enforce water-quality standards.”

Prior to this ruling, if an unanticipated environmental hazard was created by a mine or chemical plant, the EPA could quickly swoop in and mandate them to stop. But now that’s in doubt: If the specific substance isn’t noted in the permit, that power is no longer there. So, what’s going to happen? The EPA will have to make the permitting process more onerous on the front end, analyze every possible negative outcome, and get that into the permit. This would be a huge time-suck and time, of course, is money. 

Or, the EPA could simply wash its hands of this kind of strenuous regulation and, as a result, do a crappier job of protecting the environment. Considering Trump’s push to gut the agency, this is hardly implausible. 

“Look at the list of who filed the amicus briefs for the city,” says Torrey. Among them are the National Mining Association, National Association of Home Builders, and public wastewater and stormwater agencies. “It’s a laundry list of all the polluting industry trade groups. They all benefit from this.” 

San Francisco is on a roll. Last year we handed Justice Neil Gorsuch the scalpel he needed to lacerate legal rulings preventing the rousting and criminal prosecution of homeless people who have nowhere else to go. And, now, we’ve done the same, even more proactively, on behalf of environmental villains. City Attorney David Chiu has been the most aggressive elected official in San Francisco regarding Trump’s authoritarian and anti-democratic moves. But he’s also lobbed these two fat pitches to Trump’s Supreme Court.   

But you know what? It could be worse. Owen, the San Francisco law professor and water expert, worried last year that the Supreme Court could use the San Francisco case to eviscerate the Clean Water Act and mortally wound the EPA. While both have been weakened, neither has been undone. 

In this decision, Owen did not see the breadcrumbs, “or sometimes whole loaves,” this court has sprinkled throughout its prior rulings to clue in polluting Hansels and Gretels on the path to further undoing any and all environmental regulations.  

It also warrants mentioning that, by an 8-1 ruling with only Gorsuch dissenting, the Supreme Court denied one of San Francisco’s major arguments.

In a nutshell, San Francisco called for quantifiable limitations on its effluent; stuff you can measure. This, environmentalists argued, would do away with “narrative” criteria: stuff you can’t necessarily measure and may just see. That could be as simple as no visible turds or toilet paper, please. 

The city has stated, explicitly, that it did not wish to do away with narrative criteria. But the Supreme Court’s ruling found that the city’s argument would’ve done just that: “San Francisco’s interpretation would … invalidate widely accepted narrative permit provisions …” reads Justice Samuel Alito’s decision. “It is telling that the City’s interpretation would lead to … drastic consequences that the City is unwilling to embrace.”

So, the outcome of this particular case was limited. But not because the city was measured but, rather, because San Francisco’s argument was too extreme for the Trump Supreme Court. 

“If you have an argument against the EPA that’s so bad you can’t get Justice Alito on your side, that is saying something,” sums up Owen. “I think it’s pretty clear the Supreme Court understood the city was asking to get rid of narrative standards and rejected that. If the city wants to say they didn’t want to? That’s pretty rich.” 

In the end, the consequences of this fight will depend on where you stand; the ramifications of a wealthy city’s actions will be felt by the less fortunate, elsewhere. Water, after all, flows downstream. And shit rolls downhill.