Meanwhile, the blog chatter is increasing. The discussions point to the large number of environmental cases that the Supreme Court is considering reviewing right now, of which the forest roads case is one. Although the Solicitor General recommended against review, the past indications are that the Supreme Court still takes up the review of many of these cases when they are related to the environment or coming from the Ninth Circuit. In a recent Ninth Circuit dissent, one judge did everything but call for the Supreme Court to take up the case:
this is not the first time our court has broken from decades of precedent and created burdensome, entangling environmental regulations out of the vapors. In one of the most extreme recent examples, our court held that timber companies must obtain Environmental Protection Agency permits for stormwater runoff that flows from primary logging roads into systems of ditches, culverts, and channels. Nw. Envtl. Def. Ctr. v. Brown, 640 F.3d 1063 (9th Cir. 2011). In the nearly four decades since the Clean Water Act was enacted, no court or government agency had ever imposed such a requirement. Indeed, the EPA promulgated regulations that explicitly exempted logging from this arduous permitting requirement. Id. at 1073. Yet our court decided to disregard the regulation and require the permits.One commentator indicated that this could be an excellent case for the Supreme Court to review:
In my view, the Court should grant the petition. First, the Court should determine whether or not the Clean Water Act itself can even plausibly be read to give EPA power over rainwater runoff from logging roads. This a very important issue for which the nation needs a definite answer.
Second, in order to give the Court time to act, Congress enacted an appropriations rider forbidding enforcement of the new permitting requirement under the Georgia-Pacific theory. (And since EPA can’t issue permits, private plaintiffs cannot sue to compel road owners to either obtain permits or shut down the road.) But the ban expires on September 30. (That the Solicitor General took have a year to file a cert. amicus brief prevented the case from possibly being heard on the merits this spring.) Because of the time necessary for Notice and Comment for EPA rulemaking, the new EPA regulation cannot possibly be operative before the litigation freeze expires.
Besides that, if the 9th Circuit is correct, then EPA “cannot” make the regulatory choice not to require discharge permits for logging roads. Thus, EPA’s new rule will itself the subject of further litigation. As long as the 9th Circuit’s panel decision in Georgia-Pacificremains valid, EPA will have to write a regulation complying with it, and so it seems inevitable that a huge number of logging roads will be requires to get point source discharge permits.