San Francisco v. EPA

How much poop is in our water? The Supreme Court says “not enough.” If you're not a 5-4 Premium member, you're not hearing every episode! To hear this and other Premium-only episodes, access to our Slack community, and more, join at fivefourpod.com/support http://fivefourpod.com/support. 5-4 is presented by Prologue Projects. This episode was produced by Dustin DeSoto. Leon Neyfakh provides editorial support. Our researcher is Jonathan DeBruin, and our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations. Follow the show at @fivefourpod on most platforms. On BlueSky, find Peter @notalawyer.bsky.social, Michael @fleerultra.bsky.social, and Rhiannon @aywarhiannon.bsky.social. Hosted on Acast. See acast.com/privacy https://acast.com/privacy for more information. Our Sponsors: * Check out Mint Mobile and use my code mintmobile.com/fivefour for a great deal: https://www.mintmobile.com * Check out Quince and use my code FIVEFOUR for a great deal: https://www.quince.com Advertising Inquiries: https://redcircle.com/brands

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:00Speaker 00

  We'll hear argument now in case 23753, the city and county of San Francisco versus the Environmental Protection Agency.

• 0:11Speaker 01

  Hey, everyone. This is Leon from Prologue Projects. On this episode of Five to Four, Peter, Rhiannon, and Michael are talking about San Francisco v EPA. This is a case from just a few weeks ago about environmental regulation, and more specifically, how much garbage and human waste a sewage treatment plant is allowed to dump in the water supply. The case centers on the sewage system in San Francisco, which, during heavy rains, can exceed its capacity, resulting in overflows that empty out into public waterways.

• 0:43Speaker 02

  That discharge has pollution, like trash. It also has sewage, raw sewage, and bacteria, and it can have all kinds of things, like syringes and condoms.

• 0:55Speaker 01

  As you might imagine, the EPA's guidelines seek to impose limits on the pollution level in the water. San Francisco sued the EPA over these guidelines, claiming that they were insufficiently concrete and therefore unenforceable. The Supreme Court agreed. This is Five to Four, a podcast about how much the Supreme Court sucks.

• 1:19Peter Shamshiri?

  Welcome to Five to Four, where we dissect and analyze the Supreme Court cases that have caused our civil rights to collapse, like the stock market under Donald Trump.

• 1:28Michael Liroff?

  Mmm.

• 1:28Speaker 00

  Yeah.

• 1:29Peter Shamshiri?

  I'm Peter. I'm here with Rhiannon.

• 1:31Speaker 00

  Hey.

• 1:32Peter Shamshiri?

  And Michael.

• 1:33Michael Liroff?

  Hey, Peter. You got your eye on your portfolio?

• 1:36Peter Shamshiri?

  Always, baby. Always.

• 1:39Speaker 00

  Have 401Ks in that tank.

• 1:41Peter Shamshiri?

  I'm always wheeling and dealing. Line goes up, line goes down, I'm all over it either way.

• 1:47Speaker 00

  Oh, it's so bad. Oh, did you all see that? There's a Donald Trump past tweet for every occasion. And so he tweeted, god knows how long ago, during the Obama--

• 1:58Michael Liroff?

  I think it was Obama.

• 2:00Speaker 00

  Yeah, during the Obama presidency, like something like, "If the stock market drops, you know, this much in a day, the president should be impeached."

• 2:08Michael Liroff?

  Yeah, 1,000 points. 1,000 points in a day the president should be impeached.

• 2:12Peter Shamshiri?

  Yeah.

• 2:12Speaker 00

  Good stuff.

• 2:13Peter Shamshiri?

  Right.

• 2:13Speaker 00

  Yeah.

• 2:14Peter Shamshiri?

  Yeah, well, to be fair to him, that was a higher percentage of the Dow at the time.

• 2:19Peter Shamshiri?

  Now.

• 2:21Speaker 00

  Don't correct me. I said, "Stock market dropped so many points," and you said, "The Dow."

• 2:25Peter Shamshiri?

  Well, no, it's a specific market.

• 2:27Speaker 00

  Don't care.

• 2:27Peter Shamshiri?

  You're not wrong. You're not wrong, but I'm just being specific for our listeners who are of wealth.

• 2:35Peter Shamshiri?

  So that they don't complain.

• 2:36Speaker 00

  Yeah.

• 2:37Peter Shamshiri?

  That's, that's gotta be the least likely demographic to get a complaint from, for five to four.

• 2:43Speaker 00

  Right.

• 2:43Peter Shamshiri?

  People who have money. No one has any idea what we're talking about. Most of our listeners are burdened by six-figure debt. And

• 2:50Speaker 00

  Right.

• 2:51Peter Shamshiri?

  Even if you gave them a multimillion-dollar business, they would run it into the ground almost immediately.

• 2:57Michael Liroff?

  All of our listeners have never felt more seen than when Ree was like, "Do I have stocks? What's a stock?"

• 3:03Speaker 00

  Yeah. And Peter and Michael were both in unison, "No."

• 3:08Peter Shamshiri?

  Don't worry about it.

• 3:13Peter Shamshiri?

  All right. Today's case, San Francisco v. EPA. This one is fresh, hot off the presses, dropped a couple of weeks back, and it is about sewage in the water. How much do you want? What's the ideal amount? The Environmental Protection Agency is the number-one federal agency in charge of keeping poop out of the water.

• 3:37Speaker 00

  Yeah.

• 3:38Peter Shamshiri?

  In the process of regulating a sewage treatment plant in San Francisco, the EPA gave them some general guidelines for adhering to the laws regarding water quality. But San Francisco argued that the guidelines were actually too generic and therefore not enforceable. And the Supreme Court, in a five-to-four decision, agreed.

• 4:02Speaker 00

  Yeah. Guys, this case is about shit in your water.

• 4:07Michael Liroff?

  Yes.

• 4:08Speaker 00

  It really is.

• 4:08Peter Shamshiri?

  A flawless metaphor for our times.

• 4:12Michael Liroff?

  Yes.

• 4:12Peter Shamshiri?

  The EPA was like, "Hey, can you cut down on the shit in the water?" And Sam Alito is like, "They don't have to."

• 4:18Speaker 00

  Right. Back off.

• 4:21Michael Liroff?

  Right. San Francisco was like, no, fuck you. And Sam Alito was like, for once, I agree with these libs.

• 4:28Speaker 00

  Yeah.

• 4:28Michael Liroff?

  These fuckin' San Francisco libs.

• 4:29Speaker 00

  A hundred percent. Yeah. So it is very literally about shit in the water. CBS headline about the Supreme Court case. Supreme Court sides with San Francisco makes it harder for EPA to police sewage discharge. You know, that it is what this case is, is about. So, look, we've talked about the history of the Clean Water Act before. But I do want to emphasize again that before the Clean Water Act was passed, many waterways in the US were used as disposal sites. We're talking raw sewage, we're talking chemical pollutants, garbage, whatever people and companies and governments were disposing of, it went in the water, you guys.

• 5:12Peter Shamshiri?

  And then your parents drank that water.

• 5:14Speaker 00

  Right.

• 5:14Peter Shamshiri?

  And that's why they all vote for Trump now.

• 5:16Speaker 00

  Yeah, exactly.

• 5:18Peter Shamshiri?

  Because their brains are full of actual poop.

• 5:20Speaker 00

  Right.

• 5:21Michael Liroff?

  And in Gen X cases, lead.

• 5:23Peter Shamshiri?

  Also lead, yeah.

• 5:24Speaker 00

  Right.

• 5:24Peter Shamshiri?

  It's lead and, it's lead and poop.

• 5:27Speaker 00

  Gen Alpha these days, it's a microplastics issue.

• 5:29Peter Shamshiri?

  It's a plastic.

• 5:30Speaker 00

  You know, every, every generation has.

• 5:32Peter Shamshiri?

  Millennials, the only completely untouched brains.

• 5:37Speaker 00

  I'm normal, actually.

• 5:39Peter Shamshiri?

  We're so fucking normal.

• 5:42Speaker 00

  So, the Clean Water Act, it was a response to high levels of pollution in the water in the United States, which obviously devastated ecosystems and also made people unhealthy. So, part of what the Clean Water Act does is it directs the EPA, the Environmental Protection Agency, with regulating water pollution. It tells the EPA that it can pass and enforce regulations related to clean water, including, which is what's relevant to this case here, that the EPA can issue permits that impose requirements on any entities that do discharge pollutants into waters. So, these permit requirements can be a lot of things. Like, a permit requirement can restrict the amount of pollutants

• 6:25Speaker 00

  that an entity can discharge into waterways. Or what types of pollutants? If you are, you know, putting crap in the water, it needs to be under this level.

• 6:37Speaker 00

  This is like what regulation is, right? Yes. This is like how I think most people think the government should work. I don't know, not these guys, but whatever. So here, in this case, the EPA issued permits to the city of San Francisco for its two wastewater treatment facilities. They treat wastewater and storm water. Okay. And this is actually like a, in part, combined facility, meaning that treated wastewater and treated storm water can mix. And in fact, when rain levels are high in San Francisco, the combination of wastewater and storm water can exceed that facility's capacity, which results in the discharge

• 7:19Speaker 00

  of untreated water, including raw sewage into the Pacific Ocean or the San Francisco Bay. Lovely. So the EPA issued these permits and these permits had what are called in this case, what are, end up being defined in this case as end result requirements. There were two such requirements in these permits. The first was that these facilities did not make any discharge that contributed to a violation of water quality standards in that receiving body of water. So, city of San Francisco, whatever discharge is coming out of these facilities, it can't contribute to what would be a violation of water quality standards in the Pacific Ocean

• 8:04Speaker 00

  or the San Francisco Bay. The second requirement was that the city couldn't perform any treatment or make any discharge that created pollution or contamination or a nuisance as defined by applicable water quality laws. Again, like basically like, hey, whatever's coming out of these facilities, make sure it doesn't make these waterways worse, basically. So, we're going to talk about this distinction between like end result requirements and other requirements that the EPA includes in these kinds of permits. But that's what's going on in San Francisco. And like Peter said, San Francisco decided to challenge these kinds of requirements, just these quote unquote, end result requirements. They sued in the Ninth Circuit. Ninth Circuit actually was like-

• 8:49Speaker 00

  This is the dumbest claim we've ever seen and dismissed. But of course, the city of San Francisco appealed because who's above the Ninth Circuit?

• 8:59Peter Shamshiri?

  You know who loves poop?

• 9:00Speaker 00

  Yeah, and who would be totally down? That's the Supreme Court. So that's how we get up there.

• 9:06Peter Shamshiri?

  Yeah, so let's talk about the law here. First, a real quick reminder of how these federal agencies work. Congress passes laws that create the agencies and outline the scope of those agencies' power. And then the courts, like here, will sometimes hash out whether the agency is sort of acting within the scope of the power outlined by Congress. So that's what's going on here. Right. Now, this case has a bunch of textual analysis, extremely dumb, extremely convoluted. We'll touch on it a bit, but if I've learned anything about podcasting, it's that you don't want to do textual analysis in podcasting. It's bad enough when it's written out, right? But podcasting, it'll break your brain.

• 9:50Peter Shamshiri?

  So I'm going to simplify a little bit. Basically, the EPA is allowed, under the law, to impose limitations on these facilities in order to meet water quality standards. So in this situation, they tell San Francisco, hey, when you're discharging waste, you can't do anything that would make the water quality worse. But the court says this is not a valid regulation. It's what they call an end result requirement. You're not telling San Francisco exactly what to do. You're just telling them what the end result needs to be, right? You're not telling them how to meet the clean water standards. You're just saying, meet the standards. Right. So the EPA could say, hey, you need to use this equipment, maybe, right?

• 10:34Peter Shamshiri?

  Or you can only discharge this much waste into the ocean each month. But instead, they're saying, do whatever you want, just meet the water quality standards, right? Anything you do must meet those standards. The court says you can't do that. They say the EPA is supposed to impose limitations necessary to meet water quality standards. But that's not really a limitation meant to meet the standards. It's just telling them to meet the standards. So there are limitations meant to meet the standards, and then there's just telling them to meet the standards. And I guess that's not a limitation. Not a limitation, yeah. Not a limitation, according to Sam Alito. So to draw an analogy here, I'm going to do a bunch of analogies. It's like there was a government agency.

• 11:18Speaker 00

  An analogy other than there's shit in the water.

• 11:20Peter Shamshiri?

  Yeah, that's more of a metaphor for what's happening broadly.

• 11:25Speaker 00

  In the world, sure.

• 11:26Peter Shamshiri?

  But I'm gonna do an analogy about the reasoning here. So this is like if there was a government agency in charge of you getting to work on time, right? And instead of saying, you have to use this route or that mode of transportation, they say, hey, do what you want, but 9 a.m., right? Right.

• 11:45Speaker 00

  Yeah, yeah.

• 11:45Peter Shamshiri?

  Yeah. And then Sam Alito says, no, no, no, you can't say that. You gotta give them a route. You have to give them specifics. I have to say that this, to me, is what I would describe as clown shit. Yes, it's nonsense. Absolute clownery. This is such a good example of how textualism and textual analysis gets abused.

• 12:04Speaker 00

  Yes.

• 12:04Peter Shamshiri?

  Like, Alito was sort of right in the micro that there is a difference between saying, do X, Y, and Z so that you meet the water standards, and just saying, meet the water standards, right? Yeah. But he's wrong that the difference matters. Right. It's just two approaches to achieving the same exact goal, right? Right. This is why textualism is useful to conservatives, because it allows them to like parse laws every which way to sort of locate any grammatical oddity that they can and then exploit that.

• 12:34Speaker 00

  Mm-hmm.

• 12:35Peter Shamshiri?

  So the bottom line here is that the law says the EPA can impose limitations necessary to meet water quality standards. The EPA turns around and says to San Francisco, hey, you have to meet the water quality standards. And then the court says, no, you can't say that. Yeah. Just think about the mental gymnastics required to believe that this is reasonable.

• 12:57Speaker 00

  Right, and call it like this is actually your better understanding of the English language.

• 13:01Peter Shamshiri?

  Right, like, another analogy, I'm the regulator in charge of making sure Rhiannon doesn't cross the street.

• 13:08Speaker 00

  You can't make me, you can't stop me.

• 13:11Peter Shamshiri?

  Congress put me in charge of it. They're like, don't let her cross the street. So I say, cool, hey, Ree, don't cross the street. And the court's like, well, no, you can't say that.

• 13:22Peter Shamshiri?

  What are you talking about? That's, that's what I was put in charge to do.

• 13:26Speaker 00

  It's an end result requirement.

• 13:28Peter Shamshiri?

  Yeah. You can get deep into Merriam and Webster's asses about all of this, trying to figure out like the precise etymology of every word if you want. But at the end of the day, the EPA is in charge of maintaining water quality standards. And the court just told them that they can't tell San Francisco to maintain its water quality. Yeah. Just, again, clown shit.

• 13:51Speaker 00

  Buffoonery, dude.

• 13:52Peter Shamshiri?

  Clown shit. It's so ridiculous.

• 13:55Speaker 00

  It's clown shit in the water. It's not just shit in the water, it's the clown's shit in the water.

• 14:02Speaker 00

  Yeah, there's a crazy quote here. Alito says, quote, "When a permit contains such requirements," he's talking about like these quote unquote end result requirements. "When a permit contains such requirements, a permutee that punctulously 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."

• 14:27Peter Shamshiri?

  Yeah.

• 14:28Speaker 00

  Yeah, that's the point of keeping the water clean. Is that when they don't keep the water clean? They're violating the law.

• 14:39Peter Shamshiri?

  Yeah. It's so fucking stupid. Just think about the fact that the EPA is allowed to be like, you can use this machinery, but not that machinery. You have to use these chemicals and not those chemicals. They can give all of these little requirements that impose these like great costs on businesses and municipalities in this case. But they can't just be like, hey, don't violate the standards. Right, right. And, and you're meant to believe that San Francisco saying, hey, don't violate the water quality standards is not a quote unquote limitation under the law.

• 15:15Speaker 00

  Right.

• 15:15Peter Shamshiri?

  Like, we just get to this point with these like textual analyses that the conservatives do, where it's like, do you speak human language?

• 15:24Speaker 00

  Yeah, you just described a limitation.

• 15:27Peter Shamshiri?

  Yeah.

• 15:27Speaker 00

  You said that if they violate applicable standards, then they will face penalties. That's a limitation. It's a limitation.

• 15:35Peter Shamshiri?

  Yeah, but that's a limitation from without. There's a terrible part of the opinion where he's like, there are limitations from within and there are limitations from without. And this is a limitation from without. And you're sort of like, why are we talking about this?

• 15:49Michael Liroff?

  Yeah, it's insane.

• 15:50Peter Shamshiri?

  These are just different types of limitations. It's one of those things where it's like, yeah, if you paid me a million dollars and we're like, I want to put feces in the water, write the opinion. I guess this is what I would come up with. I guess I would be like, well, there's, there's limitations from within and there's limitations from without.

• 16:12Michael Liroff?

  It's so bad. It's so bad. Amy Cody Barrett writes a dissent for her and the three liberals. You know, I usually like statutory interpretation cases because I think it's kind of fun. I like doing puzzles and statutory interpretation can feel like a puzzle, you know, like all these different pieces of a statute, how they interact, the whole scheme, how it fits together. It's like a little logic game that I enjoy. This bored the shit out of me because that's not what this is at all. Yeah. There's just two provisions. One's like you can describe like limitations on effluence,

• 16:53Michael Liroff?

  which is just wastewater sewage essentially. And then a catchall that's like, yeah, and otherwise limit the, to protect the quality of water. And that's it. The way this works, by the way, I think we should say is that like, all discharge is presumptively illegal, right? And that's why there's permitting. So the EPA can issue a permit to San Francisco saying this otherwise illegal dumpage of sewage into the waters of the United States, into waters that we control, we're going to let you do that as long as you do X, Y, and Z, use X chemicals and, you know, Y disposal. And also just make sure that you

• 17:38Michael Liroff?

  don't violate the water quality standards. That's it.

• 17:41Peter Shamshiri?

  Right. That's worth pointing out, Michael, because what the court is ultimately saying here is even though the EPA could just revoke the permit, right? The EPA could say, you don't have a permit to discharge waste, right? You can't get rid of your sewage. They could say that, but apparently they can't say, hey, you can discharge your sewage, just abide by the water quality standards.

• 18:08Peter Shamshiri?

  Because that limitation is not a limitation under the law.

• 18:11Speaker 00

  It's outside the scope. It's outside the scope.

• 18:13Peter Shamshiri?

  What are you talking about?

• 18:14Michael Liroff?

  It's insane. Barrett, like, the best part of her opinion is when she just like, she just starts listing examples of things that like are obvious limitations and like that wouldn't be under Alito's logic.

• 18:27Speaker 00

  It's the easiest thing, right?

• 18:29Michael Liroff?

  Yeah.

• 18:30Speaker 00

  Yeah.

• 18:30Michael Liroff?

  I thought a good one was like saying like a minimum GPA. Like, oh, our law review has a minimum GPA of 3.5. What? Is that not a limitation on who can apply for law review? Because they didn't say you must have seven As, three A minuses,

• 18:50Speaker 00

  Right.

• 18:50Michael Liroff?

  and four B pluses or whatever. Like, what are you talking about? Obviously, it's a limitation, right? Like.

• 18:56Peter Shamshiri?

  I mean, she cuts to the core of it when she says, "Conditions that forbid the city to violate water quality standards are plainly limitations on the city's license to discharge."

• 19:06Michael Liroff?

  Right.

• 19:06Peter Shamshiri?

  Right?

• 19:06Michael Liroff?

  That's it.

• 19:07Peter Shamshiri?

  It's just like, what are we talking about? The EPA is giving them an instruction that limits their ability to discharge sewage. And Sam Alito was like, "It's not, it's not technically a limitation when you think about it. When you think about it, it's not really a limitation in this sense." And she's just like, "What are you, what is this? What is this?"

• 19:25Michael Liroff?

  It's insane. It's insane. I would love to like sit in on a legislation and regulation class next year to listen to a good professor try to explain this case.

• 19:36Speaker 00

  Mm hmm.

• 19:37Peter Shamshiri?

  Yeah, yeah.

• 19:37Michael Liroff?

  To law students. It's nonsense. It's nonsense. It's nonsense that sort of undercuts textualism as well.

• 19:44Speaker 00

  Yes.

• 19:44Michael Liroff?

  Not like, I mean, in the abstract sense, but also it's like textualism, if you ask an academic, it's supposed to be about the plain meaning, right? What's the best meaning? What's the best reading of this? What's the way a normal human being reading this statute? You know, what conclusions would they draw?

• 20:06Speaker 00

  Yeah.

• 20:06Michael Liroff?

  That's why they love dictionaries and stuff. They're supposed to be like evidence of general understandings of the way language works.

• 20:13Speaker 00

  Yeah. Big Scalia talking point, writing point, right? Plain meaning when we're interpreting the text.

• 20:19Michael Liroff?

  In what world is this a plain meaning that limiting what the city can do is not a limitation? Like, what are we talking about? And it's just like, it's clearly like bullshit. And it's bullshit that's like. An inversion of the way conservatives usually

• 20:37Speaker 00

  Yes.

• 20:37Michael Liroff?

  Talk about government, right? Which I think is like, good to note that the usual complaint is like, oh, we don't want big government micromanaging business, or we don't want big government, micromanaging local government, right? We like local control. We like, you know, states' rights and cities and all that shit. And then here you have the EPA just being like, look, just make sure the water quality is fine.

• 21:03Speaker 00

  Right.

• 21:03Michael Liroff?

  And they're like, can't do that. Can't do.

• 21:06Peter Shamshiri?

  Right. No, you have to give them really specific and onerous instructions.

• 21:09Speaker 00

  Yeah.

• 21:09Michael Liroff?

  Yeah.

• 21:10Peter Shamshiri?

  Like, the idea being that the EPA is, again, within its power to not only just revoke the permit entirely, but to say, hey, you can discharge sewage if you abide by like, these 10 steps.

• 21:23Michael Liroff?

  Give you a 300-page binder of regulations that you have to follow.

• 21:28Peter Shamshiri?

  Right. You could, you could make them basically jump through crazy hoops, but you can't just say, hey, keep the water quality where it needs to be. It's just sort of absurd on its face. It's bad governance. It's sort of like lawyer-brained, in a sense, even if you think that Alito's acting in good faith, which I really don't, but it's lawyer-brained in the sense that like, you need to be able to take a step back and think, where are the rules that I'm following getting me here?

• 22:00Michael Liroff?

  Right.

• 22:00Peter Shamshiri?

  Because it seems like I accidentally backed up into a spot where the word limitation has no meaning.

• 22:06Speaker 00

  Yeah.

• 22:06Michael Liroff?

  Right.

• 22:07Peter Shamshiri?

  Where I just told the EPA that it can't tell a wastewater treatment facility that it needs to watch the water qualities, like, of the water that it's discharging waste into.

• 22:20Michael Liroff?

  Right.

• 22:21Peter Shamshiri?

  Like, you need to be able to take a step back and be like, oh, that

• 22:24Michael Liroff?

  Yeah.

• 22:24Peter Shamshiri?

  That outcome is actually so absurd that whatever route I took to get there has to have been wrong in some sense.

• 22:31Speaker 00

  Yeah, this kind of reasoning and, you know, the whole majority opinion, the holding here, it really like exposes, like, it's not just that.

• 22:40Speaker 00

  You know, they are anti administrative state. They want to shrink the power of these federal agencies. It's so anti intellectual, actually, and so disconnected, truly, from reality, that what this boils down to is just whatever the EPA fucking does, it's a no from me. That's what it is. This isn't reasoning that makes sense. There's absolutely no logic here. It, in fact, is inversion, like you said, Michael, of a lot of how conservatives think about regulation and what federal agencies do. This is so bare in exposing that it's

• 23:20Speaker 00

  just like, I don't give a shit what the EPA is doing. Whatever comes to my desk, I'm gonna say no. It's bad.

• 23:28Peter Shamshiri?

  Exactly, exactly. We're gonna make it as hard for them as possible. No matter, no matter like what the issue is.

• 23:34Speaker 00

  Yeah.

• 23:35Peter Shamshiri?

  When it arrives on the Supreme Court's docket, their goal is to make these agencies have to jump through as many hoops as possible so that they don't get as much work done, so that their billionaire friends with yachts and sex parties don't have to worry about their companies being fined or whatever.

• 23:53Speaker 00

  Yeah, yeah.

• 23:55Peter Shamshiri?

  It's just so transparent. And while we're talking about agencies, I think that there's like an extra layer of absurdity here, because Trump is hollowing out other agencies as we speak, like. Right. Ostensibly, this is about agency authority and the will of Congress, right? Congress wrote the Clean Water Act, and that gave the EPA some amount of authority, and we must abide by Congress's will, right? This is just about making sure that Congress's will be done. Meanwhile, Trump is just shuttering agencies created by Congress, independent agencies. The same week this dropped, Sam Alito sides with the Trump administration

• 24:35Peter Shamshiri?

  against USAID, right? About like the illegal freeze of USAID funds. So like, you know, what's the conclusion you can draw, you can draw here? What's the only conclusion you can draw here? When it's the people he likes, they can use the law for fucking kindling. Right. They can seize control of independent agencies. But when it's someone he doesn't like over at the EPA, he's like, oh, I don't, I don't think that's technically what limitation means.

• 25:02Michael Liroff?

  Yeah.

• 25:02Peter Shamshiri?

  Like suck my dick, you fucking scumbag.

• 25:04Michael Liroff?

  Even even better than Kenley, when it's the people they like, they can use the law to wipe their ass and then throw it directly into your drinking water.

• 25:12Peter Shamshiri?

  Right into the San Francisco Bay, David.

• 25:14Speaker 00

  There's evidence, did y'all see in the case, there's like evidence that like when the storm water and the wastewater mix and get discharged into the Pacific Ocean, there's solid waste in the water that's visible. There's toilet paper visible in the water. Like you look in your toilet after dinner and that's what the fucking Pacific Ocean looks like when this happens. Like, uh, what?

• 25:44Michael Liroff?

  Yeah.

• 25:45Speaker 00

  And the EPA can't be like, hey, watch out for that.

• 25:50Peter Shamshiri?

  You gotta be specific. You gotta, you gotta be specific.

• 25:55Michael Liroff?

  Sam Alito, by the way, is also the guy who ruled that if this shit water connects to other waters underground, they're not actually connected.

• 26:08Speaker 00

  It's not one waterway. What case was that? I don't remember. Another fucking Alito decision, striking down something the EPA was doing.

• 26:19Peter Shamshiri?

  I don't know, but I'm a little, I'm a little concerned about two water cases in the span of one year.

• 26:23Michael Liroff?

  Written by Alito.

• 26:25Speaker 00

  Written by Sam Alito.

• 26:26Michael Liroff?

  Written by Sam Alito. Yeah.

• 26:28Peter Shamshiri?

  Yeah, he's in charge of the, the mission at the court to poopify the water. To really poop it up. Couple of years, the decisions are just gonna be like, if someone wants to swim in poopy water, that's his right as an American and the EPA is abridging it. I guess we should probably talk briefly about Amy Coney Barrett's beautiful redemption. Of course, you had this case where she sides with the libs, but then she also sided with the libs in the USAID case, which gave the libs the win.

• 27:01Speaker 00

  So did John Roberts, right?

• 27:02Michael Liroff?

  Yeah.

• 27:03Peter Shamshiri?

  Yeah, he's a hero as well.

• 27:06Michael Liroff?

  Except in the case of poop in water, then he's back to villain status.

• 27:10Peter Shamshiri?

  Well, he, that's his line in the sand. He must have, he must have poop in the water.

• 27:15Speaker 00

  Dr. Jekyll, Mr. Hyde kind of thing, you know?

• 27:18Michael Liroff?

  Yeah.

• 27:18Peter Shamshiri?

  Yeah. There has been a little bit of media and public reaction to two consecutive defections from the conservatives for Amy. First, you have conservatives being upset. The average conservative, of course, is a murderer. Whether or not they have murdered someone is irrelevant. It's spiritually.

• 27:46Michael Liroff?

  In their hearts.

• 27:46Speaker 00

  Yeah.

• 27:47Michael Liroff?

  Yeah.

• 27:47Peter Shamshiri?

  They are murderers. And so, obviously, she's receiving death threats online. You know, the academic right, Joshua Blackman over at the Volokh Conspiracy, some of those conservative blogger guys have just written that like, she is, you know, a DEI hire who should be like impeached.

• 28:06Michael Liroff?

  Yes. Yes.

• 28:08Peter Shamshiri?

  By the way, I, I've seen multiple right wing law professors, I'm not talking about random online scumbags, law professors say that she's a DEI hire.

• 28:17Speaker 00

  Yes.

• 28:17Peter Shamshiri?

  Which is, of course, true. And also hilarious.

• 28:21Michael Liroff?

  Yes.

• 28:22Peter Shamshiri?

  Clarence Thomas, of course, also a DEI hire. Neil Gorsuch, DEI, because he's tall, kind of a silver fox as far as judges go. Brett Kavanaugh, DEI hire.

• 28:35Michael Liroff?

  Alcoholic.

• 28:38Peter Shamshiri?

  Because he looks sturdy.

• 28:40Speaker 00

  Yeah, they needed a sturdy boy up there.

• 28:42Peter Shamshiri?

  He left the room and Trump was like, you couldn't knock that guy over if you tried.

• 28:46Speaker 00

  Yeah.

• 28:47Peter Shamshiri?

  You know? They're all DEI hires in different regards. And of course, the complaint about Amy Coney Barrett. It's just, it's just like, these people eat their own so fucking quickly. That's just good fun. As far as I'm concerned, conservatives talking about impeaching Amy Coney Barrett, things like that, that's funny. Sadder to me is liberals who are like, is Amy Coney Barrett good now? Yeah.

• 29:11Speaker 00

  Is she the angel that we needed?

• 29:13Peter Shamshiri?

  Right. I have seen some people be like, maybe she's on sort of a David Souter arc. And Souter is, you know, a Reagan appointee who drifted left over the course of his career. Now, whether or not you think Amy Coney Barrett is drifting left, I assure you that she is not on a David Souter arc of any type. Amy Coney Barrett voted for immunity for Trump last year. Right. Like, it was like nine months ago, right? Now, when you're analyzing what's happening at the court, you can't let the like order of cases Right. Like, just fuck your brain up like this, right? If these two dropped and then immunity dropped after, would you be talking about her drifting left? Of course not, right?

• 29:58Peter Shamshiri?

  But they're only nine months apart. This is not, this is not a meaningful period of time. Dahlia Lithwick, on her podcast, and Dahlia is a, you know, a liberal legal journalist, said that Amy Coney Barrett hasn't had years and years to be pickled in the brine of her own victimhood and fury, and you really see that this is not a pickled person. This is a fresh-faced person who's still really curious about how the world works. I don't know what to say about that, other than relax. Yeah. Like, what do you? Yeah. This is two cases. We have no more information. The idea that you need to be doing armchair psychology about this woman based on these two cases, it just blows my mind. Like, have we learned nothing? Yeah.

• 30:43Peter Shamshiri?

  How many glowing profiles of John Roberts did we get over the years? Because once a year, he sides with the liberals. Twice a year, he sides with the liberals, right? Now, it's maybe more like four or five times a year, because the cases that come to the court are more insane.

• 30:57Speaker 00

  Right.

• 30:58Peter Shamshiri?

  Right. But he continues to get credit. And now, we're going to see the same media cycle for Amy Coney Barrett, because people, I guess, are incapable of sort of taking a step back and being like, oh, this is an ideological conservative who doesn't align with like Sam Alito on X, Y, and Z necessarily. It's that simple.

• 31:16Speaker 00

  It is so wild how quickly and viciously conservatives come for their own, police their own, punish their own as soon as they step out of line a little bit from the conservative perspective. You see truly wild, I also think it's hilarious, like, I don't feel bad for Amy Coney Barrett, not one second. I think it's hilarious, but you see conservative ideologues proposing crazy things right now. Peter, you mentioned impeachment. They are saying that Amy Coney Barrett should be impeached right now. I saw a proposal online from a conservative that Trump should pack the court. Go ahead and pack it. Go ahead and expand the Supreme Court.

• 31:57Speaker 00

  Put five more crazies on the Supreme Court and that would negate Amy Coney Barrett's power. And this is a dissent. It's a dissent.

• 32:08Michael Liroff?

  It's insane.

• 32:12Peter Shamshiri?

  Yeah, but they got one win in USAID. It's such a telling difference between the right and the left. Even a slight deviation from the party line, the very far right party line, and they are fucking furious. Meanwhile, you throw the libs a bone.

• 32:28Michael Liroff?

  Yeah.

• 32:28Peter Shamshiri?

  Once a year, and they're like, is this our new God? Is this someone who can save us from the brink?

• 32:36Speaker 00

  You know, you have a different example of this and like how liberals have not learned the lesson yet in Anthony Kennedy. So retired Supreme Court Justice Anthony Kennedy, you know, Brett Kavanaugh replaced him. So Mr. Anthony Kennedy happened to be at the recent address to Congress, Trump's joint address to Congress a couple of weeks ago. Anthony Kennedy was there. He was wearing a robe. He's not a fucking judge. He's not a justice anymore, but he's in a robe anyway. And he's sitting next to the Supreme Court justices. And for folks who don't know, you know, Anthony Kennedy during his tenure on the court and certainly at the time of his retirement.

• 33:19Speaker 00

  Totally celebrated for this supposed like moderation, the moderate, the centrist. He's not really a conservative. In fact, he's an important swing vote. And, you know, he could be convinced by the liberals and he sometimes sided with them.

• 33:35Michael Liroff?

  He wrote the gay marriage case.

• 33:37Speaker 00

  And, you know, he's not a committed conservative ideologue. Like, this is how liberal, you know, legal academics and liberal journalists would comment and talk about Justice Anthony Kennedy. And it's like, okay, well, in 2025, when Anthony Kennedy has no reason to be at a Donald Trump address of Congress, he is there anyway. He's showing up in the first or second row. And why? It's so that when President Trump is going through the crowd, shaking hands, Anthony Kennedy is there. Anthony Kennedy doesn't have a reason to be there other than he is fangirling. He is a huge fan of Donald Trump.

• 34:21Speaker 00

  And as Trump is moving through the crowd shaking hands, what does Anthony Kennedy say to him? He says, Mr. Trump, you're making young people love America again.

• 34:33Michael Liroff?

  Yeah.

• 34:34Speaker 00

  What the fuck?

• 34:36Peter Shamshiri?

  Well, he was having a stroke, I think, but I, I, I still think it was a bad thing to say.

• 34:43Speaker 00

  Yeah, it's just weird to notice like over and over and over again, like liberals not learning the lesson. Like, again, like, you know, doing this celebration, this like creation of a hero in Amy Coney Barrett. When it's like, we did this in Anthony Kennedy and look how he's acting now. Like, this is your hero. And, you know, it's, it's just weird about like placing hope in all the wrong places.

• 35:08Michael Liroff?

  Yeah. No, and, and I do, I think there's like. Like, I get we're all sort of looking for something to be hopeful about. But this isn't the right place to look for hope, is the thing. Like, that's, that's the key insight you need. Yes, yeah. Right? Like, this is not the place to look for hope. And the place to look for hope is in the mobilization of the American people. I wish it was from maybe elected representatives, but that does not seem to be the case either. So if you want to look for hope, look for it in the right places. Like, don't look for it in lifelong conservative Supreme Court justices

• 35:49Michael Liroff?

  who gave Donald Trump immunity and voted to overturn Roe v. Wade in just the last 24 months. Like, come on. Like, come on. That's, it's a sucker's game. Another way to look for hope for the future is to just steel yourself against the likely consequences of bad actions. And in this, I'm segueing into a little PSA, which is, you should get vaccinated. And I don't mean about COVID or measles, although you should get your titers checked and maybe get a measles booster.

• 36:27Peter Shamshiri?

  Maybe look into what could be done for hepatitis if you live in San Francisco.

• 36:31Michael Liroff?

  Yeah. Well, that's the thing, is like, when you travel, you go to countries where there aren't very good safety standards for food and water, you get certain vaccines, like hepatitis. Or the ones I'm recommending are cholera and typhoid, both caused by waste in the water or unclean foods. I've had typhoid. It's caused by salmonella. You might remember there was a salmonella outbreak in 2022, in the fall of 2022, tied to onions that came from Mexico.

• 37:08Michael Liroff?

  I will tell you, it was the sickest I've ever felt I thought I was gonna die.

• 37:12Speaker 00

  I can't imagine. I can't imagine.

• 37:14Michael Liroff?

  I had a hundred and four fever, over a hundred and four fever, after taking a bunch of, you know, acetaminophen and running like multiple fans right in front of my face. It was like 3 a.m. and I was on Twitter being like, when should I go to the hospital? And all these doctors replying like, four hours ago, you should have gone to the hospital four hours ago. I thought I was dying. I was like, it's the worst I have ever felt. Of course, I know it was salmonella related to raw onions because the CDC tracked the outbreak, figured out where it came from.

• 37:52Speaker 00

  Yeah.

• 37:52Michael Liroff?

  Got all those onions thrown out so that, you know, the outbreak stopped. But like, the people who did that, who do that tracking, a lot of them have been fired already. As you're seeing in this case, the standards that protect you from unclean water are going to be weakened, or at least the agency's ability to enforce those standards is weakened. Yeah, our drinking water, our communal waters are going to be dirtier. When there are outbreaks, and there are outbreaks in the U.S. all the time, it's going to take longer to figure out where they came from and it's going to be harder

• 38:34Michael Liroff?

  to recall them. So, yeah, go to a travel clinic and get, get some vaccines. It's a couple hundred bucks. Well worth it. Well worth it, in my mind.

• 38:45Peter Shamshiri?

  Yeah, I, I don't have anything to add to that. I just think if you see poop in the water, don't drink it. And that's the strategy I'm going to be taking moving forward.

• 38:53Michael Liroff?

  I thought it was your chance to take a victory lap on the age of diarrhea.

• 38:57Speaker 00

  Damn.

• 38:59Peter Shamshiri?

  It's, I did say that we were coming into the age of diarrhea. I've also said the age of morons. I mean, nothing but dubs in my ages. There's various ages that I've identified.

• 39:11Peter Shamshiri?

  The question is, is this more the age of morons or more the age of diarrhea? I think that remains to be seen.

• 39:17Michael Liroff?

  Yes.

• 39:18Peter Shamshiri?

  Certainly, there are a lot of morons, but give diarrhea a minute.

• 39:29Peter Shamshiri?

  Next week, Mobile v. Bolden. This is a case from a few decades ago. We are going to explore Justice Louis Powell's racism. We teased this in our recent premium episode. Another segregationist at the Supreme Court in the 70s and 80s?

• 39:49Michael Liroff?

  What?

• 39:51Peter Shamshiri?

  Can you believe it, folks? That is, of course, unless there is another poop-related case that comes down the pipe in the next few days.

• 40:01Michael Liroff?

  Right.

• 40:02Peter Shamshiri?

  Which we are contractually obligated to cover.

• 40:05Speaker 00

  That's our promise to you. If there's a poop-related case, you're gonna hear about it on Five to Four.

• 40:10Peter Shamshiri?

  We're on that poop beat.

• 40:11Michael Liroff?

  Yeah.

• 40:12Peter Shamshiri?

  More than anyone else, I think.

• 40:15Speaker 00

  We're on the shittiest beat imaginable without a fucking poop case at the Supreme Court.

• 40:22Peter Shamshiri?

  Oh, sorry. I meant at some point to just say, "Well, this was a shitty case, wasn't it, folks?" Pow!

• 40:29Michael Liroff?

  Yes.

• 40:30Peter Shamshiri?

  We've really droned on too long at the end here. Follow us on social media, @54Pod. Subscribe to our Patreon, patreon.com/54pod for access to premium and ad-free episodes, special events, our Slack, all sorts of shit. We will see you next week.

• 40:47Speaker 00

  Bye.

• 40:48Michael Liroff?

  Bye, everybody.

• 40:56Michael Liroff?

  Five to Four is presented by Prologue Projects. This episode was produced by Dustin DeSoto. Leon Nefok provides editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations. If you're not a Patreon member, you're not hearing every episode. To get exclusive Patreon-only episodes, discounts on merch, access to our Slack community, and more, join at patreon.com/54pod.

• 41:32Speaker 00

  It is so, so nuts how conservatives will come for their own.

• 41:38Michael Liroff?

  Yeah.

• 41:38Speaker 00

  And how quickly they do it, how viciously they do it. And, um, oh shit, I just missed the, what was I gonna say about that? Holy shit, did I just forget again? I'm sorry. Michael, you were gonna make a point if you wanna go.

• 41:49Michael Liroff?

  Sure, I'll go.

• 41:50Speaker 00

  I'm sorry.

• 41:51Michael Liroff?

  It's okay.

• 41:55Michael Liroff?

  No, I forgot.

• 41:56Speaker 00

  We've all forgotten. I'm so sorry. That was so crazy. I'm gonna have it back there.

• 42:01Michael Liroff?

  Oh, fuck, what was my?