The Justices were not happy with this last minute change, and so they requested supplemental briefing after oral argument. The Pacific Legal Foundation blog has fair summaries of the supplemental briefs:
The petitioners (timber companies): The petitioners urge the Court to issue a substantive opinion resolving the “point source” and “industrial activity” questions, and reversing the Ninth Circuit. The case is not moot, they argue, because the new rule did not change the law; rather, it confirmed the position they have advanced from the beginning, which is that EPA’s stormwater regulations exempt logging road runoff from NPDES permitting. They contend that EPA’s authority to exempt logging roads is a live issue that should be resolved. They also explain that resolving the question of EPA’s authority to adopt the exemption will cut off new challenges to the revised rule, and therefore spare the courts from having to litigateDecker all over again. At the very least, say the petitioners, the Court should vacate the Ninth Circuit’s judgment and remand for reconsideration in light of EPA’s new rule.
The respondent (Northwest Environmental Defense Center): NEDC argues that the new rule does not foreclose its claims against the petitioners, and that the Court should allow lower courts to consider those claims in light of EPA’s new rule in the first instance. NEDC thus asks the Court to dismiss the case as improvidently granted, and remand so the group can continue to press its claims below. NEDC also asks the Court to affirm any aspect of the Ninth Circuit’s opinion that the Court chooses to address.
United States (by invitation of the Court): The federal government argues that the case was rendered moot by EPA’s new rule because the rule confirms that the timber companies will not have to obtain NPDES permits. This would be so even if the Supreme Court were to uphold the Ninth Circuit’s opinion, which was issued while the old regulatory framework was in place. The government believes the Court should vacate the Ninth Circuit’s judgment, and remand with instructions to dismiss NEDC’s complaint. An alternative avenue would be to vacate the Court of Appeals’ judgment and remand to allow that court to address the effect of the revised rule.Lyle Dennison at SCOTUSblog summarized:
Lawyers on all sides of the dispute over the federal government’s role — or lack of it — in monitoring the drainage of storm water across logging roads have offered the Supreme Court a range of ideas on what to do with the case, now that it has been argued and new government rules are in place. There was agreement on only one thing: the Court might consider, perhaps as a backup choice, sending the case back to the Ninth Circuit Court for a new review. That is the simplest option among an array of choices laid out in a new round of briefs in two consolidated cases argued seven weeks ago.I agree with Lyle's hint that if there is an easy way out for the Supreme Court to take, it will find it. As the National Alliance of Forest Landowners has mentioned, the real solution here is congressional action.