Wednesday, January 9, 2013

The Forest Roads Litigation Gets Even More Complicated

As the National Alliance of Forest Landowners put it, "the forest roads legal quagmire is now here." The U.S. Supreme Court heard the forest roads case on December 3, 2012 (consolidated: Decker v. NEDC, No. 11-338, and Georgia-Pacific West, Inc. v. NEDC, No. 11-347). Recall that the main issues in this case are:
  • Is the Silvicultural Rule defining forest roads as nonpoint sources of pollution a valid interpretation of the Clean Water Act (CWA)?
  • Did the U.S. Environmental Protection Agency (EPA) exclude logging from the industrial activity category which requires stormwater discharge (NPDES) permits?
  • Does the CWA allow the environmental organization to file this case in a federal district court 30 years after the Silvicultural Rule became final?
After the oral arguments, I said it was "hard to imagine a scenario that doesn't keep this issue in litigation for years to come." And that is exactly what is happening.

First, the Supreme Court has requested supplemental briefing because EPA issued a new rule aimed at curing some of the issues in the case on the eve of the Supreme Court arguments. The Justices weren't happy about not having been informed earlier about this development, so it was no surprise that they wanted to further consider how EPA's actions would affect the case. The supplemental briefs are due January 22.

Meanwhile, out in the Ninth Circuit, the same environmental organization litigating this forest roads case has filed another. This time, it has requested review of EPA's new rule that was intended to the fix some of the problems. After the past week, one thing is for sure: forest roads litigation is here to stay. Landowners certainly aren't being helped by this morass of litigation and administrative rulemaking.