Tuesday, October 30, 2012

Environmental Organization Files Brief in Forest Roads Litigation before U.S. Supreme Court

The Northwest Environmental Defense Center (NEDC), a non-profit environmental organization, has filed its brief in the forest roads case before the U.S. Supreme Court (consolidated: Decker v. NEDC, No. 11-338, and Georgia-Pacific West, Inc. v. NEDC, No. 11-347). Before I jump into the summary, here's a quick reminder of where we're at. It all started when the Ninth Circuit struck down EPA's longstanding Silvicultural Rule under the Clean Water Act, which meant that many forest landowners would need federal stormwater permits for their forest and logging roads. In response, last December, Congress stayed NPDES permitting through October 1, 2012. EPA worked much of this year to develop revisions to its Clean Water Act rules for logging roads (but it is still working on what to do with the broader category of forest roads).

NEDC argues that the Ninth Circuit's opinion was correct because:
  1. The Court has subject matter jurisdiction because the NEDC's citizen suit seeks to enforce EPA's regulations, rather than challenge them. 
  2. This case only involves the active channelization of water into ditches and conveyances that go along with logging roads and are discharges that must be permitted. It doesn't involve non-point sources or natural runoff.
  3. The accumulation of sediment into the water is an "acute environmental problem" that the EPA must address.
We'll see the landowners' responses to these points soon enough, but here is some food for thought. NEDC's first point seems to be one of those games we lawyers play with words and semantics. Even though NEDC was seeking to enforce EPA's regulations, it still challenged EPA's interpretation of them. The second point is well taken. But it does not squarely address the landowners' argument, which is not whether there is a discharge, but rather whether that discharge is associated with industrial activity, as required by law.. The third point is not especially compelling, since it basically argues that the Court should ignore out the landowners' policy reasoning but accept its own.

EDIT: 10/31/12 - Originally, I mistakenly used the acronym "NRDC," rather than NEDC. This may have called to mind for my readers familiar with environmental organizations the Natural Resource Defense Counsel. That organization is not a party to the case. Thanks to my readers for pointing out the mistake, which has now been corrected.