The Supreme Court moved into a hot-button issue in the Pacific Northwest today by asking the Obama administration for its views on whether stormwater runoff on logging roads requires Clean Water Act permitting.
The issue is presented in two related petitions before the court: Decker v. Northwest Environmental Defense Center and Georgia-Pacific West Inc. v. Northwest Environmental Defense Center, in which the state of Oregon and the timber industry, respectively, are seeking review of a ruling by the 9th U.S. Circuit Court of Appeals.
The fact that the Supreme Court is asking for the views of Solicitor General Donald Verrilli increases the chance that the justices will end up hearing the case.
Today's order notes that Justice Stephen Breyer did not participate in the discussion, most likely because his brother, U.S. District Judge Charles Breyer of the Northern District of California, was sitting by designation on the 9th Circuit panel.
Justice Breyer would therefore most likely be recused if the court grants review.
The 9th Circuit's 2010 ruling, in which the court held that logging road operators should be required to apply to U.S. EPA for permits under the National Pollutant Discharge Elimination System (NPDES) for runoff associated with the industry, provoked a political backlash both in Congress and in the affected states (Greenwire, July 27).
Legislation has already been introduced in Congress that would reverse the ruling.
Paul Kampmeier, the Washington Forest Law Center attorney handling the case on behalf of the Northwest Environmental Defense Center, which is challenging the lack of permitting, said today's activity should "remind all stakeholders -- including interested members of Congress -- that there is an ongoing judicial process for resolving the case."
In the meantime, he added, "timber hauling and logging activities will continue polluting salmon and trout streams in northwest Oregon."
Asked about what approach the Obama administration would take, Timothy Bishop, the Chicago-based lawyer at Mayer Brown representing the timber companies, said he "would not expect the United States to deviate from the considered position that EPA has consistently taken, through many different administrations, for more than 35 years."
He stressed what he characterized as the common-sense nature of the status quo, noting that the Forest Service "has said that under the 9th Circuit's approach it would have to spend the next 10 years getting 400,000 permits."
Critics say the 9th Circuit ruling ruined an existing process that had worked for 35 years, in which states had the job of regulating runoff and EPA did not require permits. Under the so-called silviculture rule, EPA concluded that most silvicultural activities were not suitable for the NPDES program, which regulates point sources -- like pipes and drains -- as opposed to nonpoint sources like land runoff.
But the 9th Circuit found that, although EPA may have intended to exclude logging road runoff from permitting, its rule was not consistent with the definition of point source.
That is because, as Judge William Fletcher noted in the opinion, man-made ditches, culverts and channels in Oregon's Tillamook State Forest -- the site being litigated over -- are used to collect and discharge runoff that eventually drains into nearby rivers.
Where does the admin stand?
Although the case deals with an EPA rule, the Obama administration's view on its interpretation is unclear.
There is some evidence from proceedings in the 9th Circuit that the government is not adamantly opposed to the environmentalists' challenge. In a brief filed in February of this year when the 9th Circuit was deciding whether to rehear the case (it subsequently decided not to), the administration said it did not have a problem with the environmental group's being able to challenge EPA's interpretation of the rule.
That was at odds with the position taken by the George W. Bush administration earlier in the litigation. In November 2007, the government filed a brief saying the environmental group could not challenge the rule and that EPA's interpretation of it was reasonable.
The Obama administration's later brief does not take a position on whether the government stands by the Bush administration's interpretation. But in a footnote, the government lawyers concede that the 2007 amicus brief was "the first time EPA expressed in an official document its interpretation that 'natural runoff' would include runoff that is channeled, ditched or culverted into man-made structures."
In the petition filed by the timber industry, Bishop wrote that the 9th Circuit had "cast aside more than three decades of EPA regulation and impermissibly imposed its own reading" of the Clean Water Act upon EPA.
The outcome is a "costly and poor-fitting effluent-control regime that is more likely to harm than help the environment," he added.
Timber industry groups and 26 states have filed briefs urging the justices to take up the issue (Greenwire, Oct. 18).
The states concede in their brief that "stormwater runoff should be managed to minimize the amount of sediment delivered to a state's waters during storm events" but insist that federal law requires the states themselves to handle that issue and report to EPA on best management practices.
Kampmeier responded in his brief that the 9th Circuit correctly followed precedent that requires courts to give deference to agency interpretations of statutory language.
Under that precedent, "the court was not obligated to defer to an interpretation of the silvicultural rule that conflicts with the unambiguous statutory definition of point source," he added.
Today's activity makes it unlikely that the Supreme Court would hear the case this term, should it decide to grant review.
In other Supreme Court action today, the justices agreed to take up a dispute about American Indian lands in Michigan that were taken into trust by the federal government so that the Match-E-Be-Nash-She-Wish Band tribe could build a casino, a requirement under the Indian Gaming Regulatory Act.
The two related petitions, Salazar v. Patchak and Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, arose from a campaign against the casino plan and focus in part on whether individuals could sue the government in an effort to stop the land being taken into trust.
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