SUPREME COURT:

Justices consider whether logging case moot in light of new EPA rule

The Supreme Court today weighed whether a U.S. EPA rule issued Friday could resolve a dispute over stormwater runoff from logging roads.

The court debated in some detail whether the rule, which says logging roads should be exempt from Clean Water Act permitting, means a 9th U.S. Circuit Court of Appeals ruling finding the opposite should be vacated or whether the case should be dismissed altogether, which would leave the appeals court ruling intact.

The state of Oregon, the timber industry and 31 state attorneys general all want the court to reverse the appeals court.

The San Francisco-based 9th Circuit ruled in favor of an environmental group, the Northwest Environmental Defense Center, in finding that logging-road operators should be required to apply for National Pollutant Discharge Elimination System (NPDES) permits, provoking a political backlash in Congress and in affected states.

On Friday, EPA finalized its rule that would exempt logging roads from permitting, a move the industry says does not go far enough. The case concerned two logging roads in Oregon, but the 9th Circuit decision has much broader implications (Greenwire, Nov. 29).

Before the appeals court ruling, states had the lead role, and EPA did not require permits. Under the "silvicultural rule," most recently amended in 1980, EPA said most silviculture activities were not suitable for the NPDES program, which regulates point sources -- industrial discharge pipes -- as opposed to nonpoint sources like stormwater runoff.

The 9th Circuit concluded that although the silvicultural rule did exempt certain discharges from permitting, runoff that was channelized before being discharged into waters of the United States was not exempt because it is not "natural runoff," the term used in the rule.

Further complicating matters, EPA, in a separate stormwater rule, later exempted certain point sources from permitting, meaning that even if the logging road discharges were determined to be a form of point-source pollution, they could still be exempt from regulation if the high court finds they are not a form of "industrial activity."

Timothy Bishop of Mayer Brown, arguing for the industry groups and Oregon, sought to persuade the court to reverse the 9th Circuit by ruling that logging roads do not fit within the definition of industrial activity.

But the court appears reluctant to take that route.

Before Bishop had time to describe his arguments, Chief Justice John Roberts immediately asked what impact the rulemaking had on the case. He said it would be an "unusual situation" for the court to reach the merits when the rule has changed the legal landscape.

Bishop countered that a failure to reverse the 9th Circuit would leave his clients facing the possibility of having to pay remediation costs for past violations and attorneys' fees.

The Obama administration, which participated in the case in support of the industry, had a different proposal: that the court vacate the 9th Circuit, meaning the decision would be wiped from the books. Such a move would allow the environmental group to challenge the new regulation and proceed with its existing claims when the case is sent back to the lower courts.

Jeffrey Fisher, a Stanford Law School professor representing the environmental group, had yet another suggestion: The court should dismiss the case altogether, meaning the 9th Circuit ruling would remain on the books in relation to the old rule. Fisher's clients could then seek attorneys' fees and other remedies and possibly challenge the new rule.

"We will proceed whichever way we can," Fisher said.

The chief justice seemed to have concerns about all the possible outcomes. He said he would "have trouble" seeing how the court could find the case moot or dismiss it when the possible remedies haven't been litigated.

The EPA rulemaking took center stage in the argument despite the fact that it was issued only three days ago.

Roberts showed irritation at the fact the court did not get more advance warning that the rule was on its way last week, even though the Justice Department had told the court that EPA was working on it. Greenwire reported Thursday that the rule was due to be finalized by the end of the week (Greenwire, Nov. 29).

"Were you as surprised as we were to learn about that final rule?" Roberts asked Justice Department lawyer Malcolm Stewart.

He noted the EPA rulemaking process usually takes considerably longer.

Stewart said he didn't find out the rule had been finalized until Friday.

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