Thursday, April 18, 2013

What Does the U.S. Supreme Court's Decker Decision Mean in Plain Language?

Once again, thanks to the Southeastern Wood Producers Association for inviting me to give its membership an update on the forest roads litigation in the latest edition of its newsletter, Out of the Woods. See Decker v. NEDC, 568 U.S. _ (2013) (consolidated: Decker v. NEDC, No. 11-338, and Georgia-Pacific West, Inc. v. NEDC, No. 11-347). This short, readable article is excerpted below.

U.S. Supreme Court Decides Forest Roads Case 

In good news for the forestry community, federal permits will not be required anytime soon for logging roads. In Decker v. NEDC, the U.S. Supreme Court decided that the U.S. Environmental Protection Agency’s (EPA) rules properly exempt stormwater runoff from logging roads from permitting under the Clean Water Act.

In the last issue of Out of the Woods, you may recall that I mentioned this case because it addressed two important questions. First, would all forest and logging roads require a time-consuming and expensive permit (permitting costs in the Southeast had been estimated as high as $21.46 per acre per year)? Second, would forest landowners be exposed a greater risk of environmental lawsuits? These questions made the Decker case the most important regulatory decision for forestry professionals and forest landowners in recent memory.

In the 1970s, EPA had developed the Silvicultural Rule, excluding logging roads from Clean Water Act permitting. No one had ever challenged that interpretation until an environmental organization, NEDC, sued Oregon and several timber companies. Although the defendants had acted legally under the EPA’s standards, NEDC argued that they should have had a permit because EPA’s rule was invalid. A federal trial court dismissed the case, but the appellate court invalidated the rule.

By the time the case got to the Supreme Court and was ready for oral arguments in December, the forestry community looked poised to win. EPA, though, complicated things by issuing a new rule on the eve of arguments that was supposed to fix the problem. After these complications, most observers thought it was unlikely that the Supreme Court would address the actual Clean Water Act permitting issues.

In a pleasant surprise for the forestry community, however, the Supreme Court did. It ruled that EPA’s rules exempt “discharges of channeled stormwater runoff from logging roads” from Clean Water Act permitting, reasoning that EPA’s interpretation of its own regulation was reasonable, was longstanding, and complied with the intent of the Clean Water Act. The Supreme Court could have stopped there, but it went on to congratulate Oregon on a job well done in implement its forestry best management practices. The Supreme Court seemed to recognize, as foresters and scientists have pointed out, that a nationwide Clean Water Act permitting regime might actually lead to dirtier water. In doing so, the Supreme Court recognized the importance of allowing landowners and the forestry community to work together voluntarily to address environmental problems, rather than requiring a command-and-control regime.

The Decker decision, however, was not all good news for the forestry community. The Supreme Court said the NEDC could bring its challenge to the Silvicultural Rule, which was over 30 years old. Normally, a rule can only be challenged for a short period of time before it becomes law. The Supreme Court ruled that because the challenge was to whether the landowners had proper permits, they were not actually challenging the rule directly. This will, unfortunately, lead to more litigation by environmental organizations that do not like longstanding rules. Landowners may be subject to these lawsuits, even if they follow all of the agencies’ rules and recommendations. With this risk, and the fact that NEDC has already filed a new lawsuit challenging EPA’s new rule, the Clean Water Act remains an issue that the forestry community must be aware of.

With all environmental law and regulatory problems, the real solution is political. Therefore, congressional action permanently exempting silviculture in all its forms from the Clean Water Act would still be the best solution. Recent election-year politics have not yielded results, but now that the Supreme Court has ruled, this issue may not be as contentious as it once was. You can help by calling your elected representatives.

Jacob T. Cremer is an attorney at Smolker, Bartlett, Schlosser, Loeb & Hinds, P.A., in Tampa. His practice focuses on property rights, environmental, and land use law. He grew up in a family that has been involved in forestry in Florida for many generations. Follow the developments on these cases and others at his blog, The Florida Land Environment,