Right out of the gates, Chief Justice Roberts wanted to talk about how the EPA's new rule would affect the case, congratulating the industry on "getting almost all the relief they're looking for under the new rule issued on Friday." LegalPlanet's analysis of the arguments continues:
The Chief Justice was not nearly as polite when the Deputy Solicitor General began his argument on behalf of USEPA (as amicus supporting the industry and Oregon petitioners). Were you as surprised as we were, asked Roberts, that the rule would be issued on Friday? After the government’s lawyer revealed that he, too, had only learned of the new regulation on Friday, the Chief Justice mused that 375 pages of merits briefing had been rendered largely irrelevant, and that the Court could have postponed the Decker arguments until April if it had known in advance that the new rule was coming–presumably to allow supplemental briefing on the effect on the case of the late-breaking EPA regulation.
Following this morning’s arguments, it seems obvious that the Northwest Environmental Defense Center will not preserve its win in the Ninth Circuit. But it’s almost equally unlikely that the timber industry and Oregon will obtain the reversal on the merits that they had been fervently seeking from the Supreme Court. More likely, the Court will wind up disposing of the Decker case on procedural grounds, without issuing a substantive decision. And that, ironically, will vindicate the Solicitor General’s original recommendation to the Court–ignored by the justices–that the Decker case was not cert-worthy in the first place.
All this without Justice Breyer, who had recused himself from the case, and whose expertise in administrative law may have been originally helpful, and which certainly would have been valuable after the case's change in posture. With that, the environmental cases don't seem to be making as big of a splash before the Court as many thought they would. As SCOTUSblog reports, the other Clean Water Act case before the Supreme Court, to be argued tomorrow, also appears to have become irrelevant. See Los Angeles County Flood Control District v. NRDC, No.11-460 (cert. granted June 25, 2012).
The upshot here for forest landowners is, just as NAFO predicted, EPA's new rule has created legal uncertainty that landowners will be forced to deal with, possibly for years into the future. Based on the arguments today, it's hard to imagine a scenario that doesn't keep this issue in litigation for years to come.