Sunday, November 25, 2012

Yes, Silviculture is Agriculture: Forest Roads Case to be Argued Next Week Before U.S. Supreme Court

If it were up to your environmental organizations, your local tree farmer couldn't call himself a farmer. And he doesn't have a tree farm. No, he is an industrial titan - just as much an industrial operation as mining, oil exploration, and heavy equipment manufacturing.

What? Even though silviculture is simply the agriculture of trees? Even though silviculture is always regulated as agriculture? And EPA says forestry is agriculture? Incredibly, that is just the argument being made by NEDC in the forest roads litigation to be heard before the U.S. Supreme Court next week (consolidated: Decker v. NEDC, No. 11-338, and Georgia-Pacific West, Inc. v. NEDC, No. 11-347). Absurd arguments like this show the disconnect these days between environmental advocacy and reality.

The closing reply briefs of the forest and silviculture interests were filed recently, just ahead of the oral arguments. Georgia-Pacific's brief makes some strong technical arguments about the Clean Water Act, but its strength is in explaining the practicalities of forestry. For example, as lampooned above, the NEDC argued that the timber harvesting is industrial activity, twisting those words almost to their breaking point. Georgia-Pacific, however, points out that silviculture is no more industry than agriculture is: "The use of a chain saw, feller buncher, or cable-yarder to harvest trees no more makes logging 'industrial' than using a 20-ton combine to pick and segregate corn makes crop harvesting 'industrial.'" Consequently, "EPA has determined that forestry roads and silvicultural harvesting ... more closely resemble agricultural land uses than industrial uses."

Georgia Pacific's brief makes four main legal arguments:
  • Channeled forest road runoff is not a discharge "associated with industrial activity."
  • Channeled forest road runoff is not a "point source" discharge.
  • The respondent environmental organization's interpretations would undermine the purpose of the CWA.
  • The U.S. Supreme Court lacks jurisdiction to invalidate EPA regulations in this kind of enforcement action.
The brief by the State of Oregon  focuses on the Ninth Circuit's refusal to defer to the expertise of the EPA. Normally, courts are supposed to give the opinions and rules of expert agencies great weight, but in the case below, the Ninth Circuit did not do that: 
Here, EPA has consistently interpreted its stormwater discharge rule to exclude stormwater runoff from forest roads from the permitting requirements and its interpretation is consistent with the text of the rule and EPA's expressed intention when it adopted the rule. In light of its unfaltering interpretation of its rule, EPA's interpretation binds this Court. 
But respondent now suggests that this Court should simply pretend as if the very regulation that respondent is seeking to enforce does not exist at all because the relevant statutory language is "plainly dispositive." (Resp. Br. 17). Yet in so arguing, respondent fails to grapple with the two roadblocks in its path: (1) this Court's longstanding recognition that when Congress entrusts an agency with the responsibility to carry out Congress' directives and that agency carries out its responsibility by adopting a rule, the agency's regulations executing those directions cannot simply be ignored; and (2) the limitations on the scope of review in a citizen suit, which preclude a reviewing court from rejecting an agency's regulations because, in the court's view, the agency's interpretation is inconsistent with the relevant statute.
Stay tuned. The Supreme Court will hear this case next week. I'll post commentary once the transcripts are released. In the meantime, catch up on the history of this dispute in my archives.