Thursday, February 28, 2013

Forest Roads Litigation Update: In Challenge to EPA's New Rule, Industry Intervenes

The forest roads litigation continues to develop, but that unfortunately means little certainty for landowners. In preparing to speak about this litigation with the Alabama Forestry Association at their mid-year meeting on Friday, I have a few updates for my readers.

As I mentioned before, the Northwestern Environmental Defense Center has already attacked EPA's new rule in the Ninth Circuit. This came as a result of EPA releasing a new rule "clarifying" that logging and logging roads are not subject to NPDES permits under the Clean Water Act. Recall, as I've discussed, that this rule really does not seem to solve much, but that it really fouled up oral arguments at the U.S. Supreme Court because it was released just before the arguments.

In any case, it is somewhat helpful to forest landowners, so earlier this month, a large groups representing timber and forestry interests requested intervention in the case to protect their interest. The industry organizations request intervention for a number of reasons, including that while they and "EPA agree that forest road stormwater discharges are not currently subject to NPDES permitting under the CWA, they may disagree as to how and when such discharges should become subject to regulation in the future. Indeed, as part of the Federal Register notice regarding the Final Rule, EPA explicitly acknowledges that it may regulate such discharges in the future." That is, while they agree with EPA that logging roads should not be subject to permitting, they foresee a future fight over the more permanent forest roads.

On February 13, the Ninth Circuit granted the petition to intervene. The amended briefing schedule is as follows: EPA is to file the administrative record by June 13, 2013, the NEDC's brief is due July 23, EPA's answer brief is due August 22, and the industry intervenors' brief is due September 5, with NEDC permitted to file a reply 14 days thereafter. The Court has not yet ruled on the industry's petition to intervene, but it will most likely allow them into the case. NEDC's initial brief is due on March 25 and EPA's brief defending its new rule is due April 24.

Uncertainty remains for landowners. But one thing is for sure: NEDC isn't going to back down. As Greg Jackson wrote on the blog of the Kentucky Journal of Equine, Agriculture, and Natural Resources Law:
As demonstrated above, continuing to pursue the current litigation is NEDC's only avenue to recover its costs. While completely dropping the suit will not promote any of NEDC's goals, solely pursuing the challenge before the Ninth Circuit would. It allows the group to protect the environment and the Pacific West's natural resources, and, through another lawsuit, could result in receiving the requested relief. Furthermore, given the current appeal's interlocutory nature, this bifurcated approach would not produce any greater litigation. In fact, this option may clear up some complex issues, such as jurisdiction, and lead to cleaner litigation. Instead, however, NEDC has chosen to continue the current appeal, notably the only option for recouping its litigation costs. Thus, a substantial factor in NEDC's decision to continue litigating the action currently before the Supreme Court appears to be monetary. Instead of taking the simpler challenge routes, the group has chosen to unnecessarily prolong complex litigation in hopes of forcing its opponent to foot mounting legal bills. This clear evidence of greed is certainly an uncomfortable reality for an environmental group who would likely be quick to condemn the corporate defendants as malicious profiteers, selfishly subjecting the environment for their own personal gain.
I don't necessarily agree with Jackson that this is "greed." Rather, it seems more about a self-interested organization that, like all organizations, is out to keep itself going. So it's about money now for the NEDC. Its incentive now is to win the litigation, no matter the best legal solution. If it were poker, I would say the group is pot-committed.

EDIT 10:30 AM 2/28/13: I've revised the post to reflect new information that readers sent me revising the briefing schedule and indicating that the motion to intervene has been granted.