Did the Supreme Court Mean It When It Said Landowners Must Have a Practical Way of Challenging an Agency's Jurisdiction?

In my last post, I wrote about how the nationwide stay would likely remain in effect for WOTUS, the new rule written to redefine the meaning of the Waters of the United States under the Clean Water Act by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers. As I implied last month, if WOTUS survives the rule challenges, one effect may be that there are fewer Jurisdictional Determination (JDs).

If that happens, then it would make two cases that are being litigated by the Pacific Legal Foundation before the U.S. Supreme Court even more important. In U.S. Army Corps of Engineers v. Hawkes Co., Case No. 15-290 (2015), The Supreme Court will decide whether a JD can be challenged in court, or whether a landowner has to face the unenviable choice of having to spend tens of thousands of dollars to get a permit denied versus moving forward with a project without asking permission and risking fines and criminal penalties.

In Hawkes, a peat mining company wanted to mine in wetlands. The Corps issued a JD claiming jurisdiction, and issued the JD even after an administrative challenge. The peat company sued, but the district court dismissed, finding that the JD was not a challengeable final agency action. The Eighth Circuit reversed, splitting with the Ninth and Fifth Circuits.

The Eighth Circuit said that all final agency actions for which there is no other adequate judicial remedy must be able to be challenged. To be final, an agency’s action must be the end of the decisionmaking process, and it must have legal consequences for someone. Like every other court that has addressed the issue, the Eighth Circuit found that a JD was the end of a decisionmaking process. It disagreed with other courts, though, and found that the JD jad legal consequences, since the “prohibitive costs, risk, and delay of these alternatives to immediate judicial review” were inadequate substitutes. It held that the Supreme Court had mandated judicial review as a remedy in such cases in Sackett v. EPA, 132 S.Ct. 1367 (2012).

Another very similar case has been pending before the Supreme Court since late 2014. The Supreme Court initially denied certiorari of Kent Recycling Services, Inc. v. U.S. Army Corps of Engineers, Case No. 13-30262 (2014) (also known by the name of another plaintiff below, Belle Co., LLC). After the Hawkes decision by the Eighth Circuit, PLF moved for rehearing, which has yet to be decided.

Oral argument in Hawkes will be on March 30, 2016, so both cases should be decided soon. Ultimately, the Supreme Court will be decided a simple question: did it mean what it said in Sackett, that landowners must have a practical way to challenge an agency’s assertion of jurisdiction over their land?

WOTUS Breaking News: 6th Circuit to Hear Rule Challenge, Stay Likely to Remain in Effect

Big news today in the environmental world: the 6th Circuit has said it will hear challenges to a new rule developed by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers, known as WOTUS ("Waters of the United States"). This mean that the nationwide stay that the 6th Circuit issued last year is likely to remain in place until it comes to a final decision on the merits of the 20-odd lawsuits filed against the rule.

Readers of this blog have seen several posts on this topic in recent months because of its importance to landowners in Florida. As I wrote last month,

On August 28, 2015, a new rule promulgated by the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers took effect in Florida. The rule, called WOTUS, seeks to clarify the definition of “waters of the United States,” which is critical to those agencies’ regulatory reach under the Clean Water Act (CWA). The CWA prohibits the discharge of pollutants into waters of the United States without a permit. Violators are subject to penalties of thousands of dollars per day (even if unintentional) or costly lawsuits by neighbors or environmentalists.

Many of the waters subject to federal jurisdiction are easy to identify: navigable water bodies, rivers, streams, creeks, impoundments of those waters, and wetlands directly adjoining any of those waters. Beyond those, though, what qualifies has been unclear for decades. A series of U.S. Supreme Court cases created confusion because the justices could not agree on just how far federal agencies could reach. This meant that, for many small waters and wetlands, the Corps had to perform a site-specific jurisdictional determination. While burdensome to the agencies, this analysis at least forced them to use science to determine whether more-isolated waters and wetlands had a “significant nexus” with a water that was subject to federal jurisdiction.

Now, the federal agencies have adopted WOTUS, a rule that will mean fewer case-by-case analyses. While this may make the process more “efficient” for the agencies, that comes at the expense of more areas automatically being deemed as falling under federal jurisdiction simply because the agency says so, rather than because of any scientific connection to another water.

Many groups filed suit last year, and after one federal district (trial) court in North Dakota issued a stay limited to the states involved in that case, the 6th Circuit issued a nationwide stay on the application of WOTUS. Then, the fight became about whether federal district courts or circuit courts should hear the substance of the parties' challenges to WOTUS. In the meantime, the 11th Circuit, which has jurisdiction over Florida's challenge, cancelled oral arguments on its case, saying it would reschedule once the 6th Circuit had made a decision.

Today, the 6th Circuit did just that, ruling that it had jurisdiction over the challenges, and not district courts. Although it is not yet entirely clear, the decision most likely means that the nationwide stay on any application of WOTUS will remain in place. Landowners should be pleased with the direction of this litigation so far.

New Brief Article: What Does WOTUS Mean for the Timber Industry and Forest Landowners?

My friends at the Southeastern Wood Producers Association recently published an article I wrote for them in their quarterly magazine, Out of the Woods: What Does WOTUS Mean for the Timber Industry. I've written several times about this issue and the Waters of the United States Rule. The problem comes down to the extent of the federal government's reach over water bodies and wetlands, especially those that have nothing to do with navigation or interstate commerce. The article is excerpted below.

On August 28, 2015, a new rule promulgated by the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers took effect in Florida. The rule, called WOTUS, seeks to clarify the definition of “waters of the United States,” which is critical to those agencies’ regulatory reach under the Clean Water Act (CWA). The CWA prohibits the discharge of pollutants into waters of the United States without a permit. Violators are subject to penalties of thousands of dollars per day (even if unintentional) or costly lawsuits by neighbors or environmentalists.

Many of the waters subject to federal jurisdiction are easy to identify: navigable water bodies, rivers, streams, creeks, impoundments of those waters, and wetlands directly adjoining any of those waters. Beyond those, though, what qualifies has been unclear for decades. A series of U.S. Supreme Court cases created confusion because the justices could not agree on just how far federal agencies could reach. This meant that, for many small waters and wetlands, the Corps had to perform a site-specific jurisdictional determination. While burdensome to the agencies, this analysis at least forced them to use science to determine whether more-isolated waters and wetlands had a “significant nexus” with a water that was subject to federal jurisdiction.

Now, the federal agencies have adopted WOTUS, a rule that will mean fewer case-by-case analyses. While this may make the process more “efficient” for the agencies, that comes at the expense of more areas automatically being deemed as falling under federal jurisdiction simply because the agency says so, rather than because of any scientific connection to another water.

Thus, WOTUS now designates all tributaries and waters and wetlands “adjacent” to or “neighboring” other jurisdictional waters as under federal jurisdiction. In some cases, waters and wetlands 1,500 feet away from another water are considered “neighboring,” even if there is no hydrologic connection. Even ephemeral drains and ditches that water only flows in after a rain are now almost always under federal jurisdiction.

These changes may not seem important at first, since the timber industry has traditionally been excluded from many permitting requirements. For example, CWA permits are not required to manage the runoff from common forestry practices, such as site preparation, thinning, control burns, and road construction, as long as they are undertaken in accordance with standard industry practice. Even so, WOTUS is important to watch because it will expand the need for obtaining CWA permits for some commonplace practices, such as for application of herbicide and fertilizers in and near wetlands and for construction of some roadside ditches near wetlands. Prudent professionals will need to think twice about past common knowledge.

WOTUS has provoked fierce opposition. Legislation to block it is progressing, but it would likely face a presidential veto. At least half the states are challenging WOTUS in court. A federal judge has temporarily stopped the rule’s implementation, but it is not clear whether this will last. Therefore, the ultimate fate of WOTUS remains unclear. For now, the timber industry should be actively engaging elected officials to encourage them to take action.

As I mentioned last week in a post about another article I wrote on this topic, this issue is moving fast and there are a few updates since I wrote the article:

• The Government Accountability Office found that EPA broke federal lobbying and propaganda laws in its zeal for pushing the rule forward. 
• The Senate voted to kill the rule; the House did the same recently; and President Obama has vowed to veto any such measures.
• A federal judge enjoined the rule's implementation across the entire country, including Florida. However, it's not clear how long this injunction will last, and the legal wrangling is expected to continue for some time.

I'll have a more comprehensive update on the status of the litigation in the coming week.

New Brief Article: How Does WOTUS Affect Your Clients' Wetlands?

Many thanks to the Hillsborough County Bar Association, which published an article I wrote for their Lawyer magazine entitled How Does WOTUS Affect Your Clients' Wetlands? Readers of my blog will be familiar with my earlier posts on the Waters of the United States Rule. The question this new rule raises is how far does the federal government's power reach over water bodies and wetlands, especially those that have nothing to do with navigation or interstate commerce? The article is excerpted below.

On August 28, 2015, a new rule promulgated by the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers took effect in Florida. 80 Fed. Reg. 37054 (June 29, 2015). The rule, called WOTUS, seeks to clarify the definition of “waters of the United States,” which is critical to those agencies’ regulatory jurisdiction under the Clean Water Act (CWA).

The CWA prohibits the discharge of pollutants into waters of the United States without a permit. The outer boundaries of what qualifies as a jurisdiction water have been unclear for decades. A series of U.S. Supreme Court cases have indicated that, while the agencies’ jurisdiction is broad, it does not extend to the outer reaches of the Commerce Clause. See Rapanos v. United States, 547 U.S. 715 (2006); Solid Waste Agency of Northern Cook Cnty. v. U.S. Army Corps of Eng’rs, 531 U.S. 159 (2001); Riverside Bayview Homes, Inc. v. United States, 474 U.S. 121 (1985).

One of these cases, Rapanos, created a great deal of confusion because the plurality, a concurrence by Justice Kennedy, and the dissent all developed different jurisdictional tests. The agencies have focused on Justice Kennedy’s “significant nexus” test. Under it, if a water has some appreciable impact on a traditionally-regulated water under the CWA (like a navigable water), then that water is also jurisdictional. This has meant that many small waters and most wetlands have been subject to the “significant nexus” analysis on a case-by-case basis. This led to a great deal of informal agency guidance, including wetland delineation manuals that attempted to use scientific methods to aid decision making.

According to EPA and the Corps, WOTUS increases regulatory certainty by reconciling past practices, science, and case law. It does so by expanding the scope of waters and wetlands that are categorically classified as jurisdictional, rather than subject to a case-by-case review. Tributaries and waters and wetlands “adjacent” to or “neighboring” jurisdictional waters are now categorically jurisdictional. In some cases, waters and wetlands 1,500 feet from a jurisdictional water are considered “neighboring,” even if there is no hydrologic connection. See 33 CFR § 328.3(c)(2). WOTUS also codifies some exclusions that are are based on agency practice, including for minor ditches and small artificial ponds. See 33 CFR § 328.3(b).

WOTUS has provoked fierce opposition. Legislation to block it is progressing, but it would likely face a presidential veto. At least ten federal law suits are challenging the rule (with at least half the states as plaintiffs), alleging that WOTUS expands federal jurisdiction beyond the CWA’s limits. A federal judge recently enjoined the rule’s implementation in thirteen states, but this did not include Florida. Therefore, while the ultimate fate of WOTUS remains unclear, what is certain is that Florida landowners will be required to comply with it in the short term. What is also certain that this new rule will result in more Florida wetlands being categorically defined as jurisdictional rather than being subject to case-by-case analysis.

I'll give a full update post on this topic soon, but since just since my article was published in late 2015:

• The Government Accountability Office found that EPA broke federal lobbying and propaganda laws in its zeal for pushing the rule forward. 
• The Senate voted to kill the rule; the House is expected to do the same soon; and President Obama has vowed to veto any such measures.
• A federal judge enjoined the rule's implementation across the entire country, including Florida. However, it's not clear how long this injunction will last, and the legal wrangling is expected to continue for some time.

 Stay tuned.This issue isn't going away anytime soon.

Federal Jurisdiction over Wetlands Significantly Expanded in Florida

I've had a lot of questions and calls lately about the Army Corps of Engineers' and the EPA's "Clean Water Rule." It is otherwise known as the Waters of the United States Rule (WOTUS), and it significantly expands the federal government's regulatory jurisdiction, especially in Florida. The question is this: how far does the federal government's power reach over water bodies and wetlands, especially those that have nothing to do with navigation or interstate commerce?

As most of you know by now, I've joined the Tampa office of Stearns Weaver. My Tallahassee colleague Reggie Bouthillier, our summer clerk William Anderson, and I wrote an in-depth briefing to update Florida landowners and consultants on how this new rule might affect them. At a conference this summer, a well-known environmental scientists quipped that the new rule of thumb in Florida is that when it rains, there are enough puddles to make the entire state subject to federal jurisdiction. He was only half joking.

Here's the summary of our briefing:

On May, 27, 2015, the United States Environmental Protection Agency ("EPA") and the United States Army Corps of Engineers ("Corps") issued the final "Clean Water Act Rule," aimed at clarifying the jurisdictional definition of "waters of the United States" ("jurisdictional waters") under the Clean Water Act ("CWA"). The new rule attempts to increase regulatory certainty by reconciling past agency practices, science, and U.S. Supreme Court decisions. As a result, Florida landowners and developers will likely need CWA permits where they were not previously necessary. 

The CWA prohibits the discharge of pollutants into jurisdictional waters. Even though this concept is key to the agencies' regulatory jurisdiction, its outer boundaries have been unclear and have been subject to numerous court challenges. While navigable waters have traditionally been viewed as jurisdictional, most other waters (including wetlands) have been subject to case-by-case analysis to determine whether those waters had a "significant nexus" with navigable waters. Under the Clean Water Act Rule, however, many more waters and wetlands will be categorically defined as jurisdictional waters, in some cases even if the water is relatively isolated and wholly intrastate. Consequently, the rule does give more regulatory certainty, but that certainty gives landowners and developers less flexibility and makes challenges to jurisdictional determinations more difficult. 

On August 28, 2015, the Clean Water Act Rule will go into effect and land owners and developers will face increased regulation, translating into additional costs, timing, and permitting requirements for projects. It is unclear whether efforts to delay the rule's implementation will be successful. Legislation blocking implementation of the rule has passed the House and is pending in the Senate, but it would likely face a presidential veto. At least ten federal law suits are challenging the rule, and several seek preliminary injunctions against the rule's enforcement. 

In light of this new rule and the uncertainty surrounding it, landowners and developers need to be vigilant in protecting their rights in the federal permitting process.

Read the full article here. Since this was published, you should know that a federal judge in North Dakota has issued an injunction against the rule's implementation. At this time, the federal agencies are taking the position that the order only applies to implementation in those states involved in that particular lawsuit. Florida is not one of them - so the Corps and EPA have been implementing the new rule since last Friday, August. 28, 2015.

Quick Update: Will Congress Act to Fix the Forest Roads Quagmire through the Farm Bill?

I've had some questions lately about the effects of the U.S. Supreme Court's decision in Decker v. NEDC, 568 U.S. _ (2013). As I've discussed, in that case, the Supreme Court held that the U.S. Environmental Protection Agency’s (EPA) rules properly exempt stormwater runoff from logging roads from permitting under the Clean Water Act. Because of complications from the new rule EPA issued just before oral argument in the Decker case, however, the NEDC had an opening to continue the litigation out in the Ninth Circuit. So the litigation and uncertainty for forest landowners continued.

These questions are timely. As my readers well know, I've been saying for years on this blog that the only way out of the forest roads quagmire and its resulting litigation is for Congress to act.

This year's Farm Bill process was a mess. While the bill sailed through the Senate, in the House nobody on either side of the aisle could agree on anything. Ultimately, the House was able to split the farm components of the bill from the food stamp provisions that have been a part of it for years. Into this "farm only" bill went the Forest Roads Amendment. This amendment would preserve EPA's 37-year-old interpretation that forest roads should be regulated as nonpoint sources (and therefore no permit is necessary). This amendment was basically the same as the Silvicultural Regulatory Consistency Act, which various legislators have been working to pass for several years.

This paves the way for a true legislative solution when the Senate and the House discuss the differences in the bills that were passed later this year--presumably before September 30, when the current Farm Bill expires. If you're a forest landowners or in the forestry industry, you'd do well to call your senators and representatives and encourage their support for the Forest Roads Amendment.

Sackett v. EPA: One Year Later

Now that the Pacific Legal Foundation has won another big property rights victory with the Koontz decision, it seems appropriate to return to last year's Sackett decision, which PLF also argued. Recall that, in Sackett , the U.S. Supreme Court held that landowners could bring a civil action to challenge a compliance order under the Administrative Procedure Act. In doing so, the Court decided that regulatory efficiency doesn't trump everything.

In a timely article, Russell Prugh at Marten Law has taken a look at the decisions decided under Sackett since that case came down. He writes:

What one finds from reviewing these early cases is that:

1. They are fact-specific;
2. They are not limited to the CWA;
3. They turn on the court’s finding of whether the action challenged was “final”; and
4. Whether the agency action is deemed final turns on whether the court sees it “just a step in the deliberative process” or as leaving nothing left to do but to refer the case to a government lawyer to enforce.

And he concludes:

The theme that emerges from the early cases interpreting Sackett is that courts have focused on a case-by-case analysis of whether the agency action challenged subjects the complainant to enforcement, or rather is simply a step in the decision-making process. The answer is often not clear, and different trial courts could go either way, adding uncertainty to the outcome of any challenged action. Courts are most apt to allow pre-enforcement review in cases factually similar to Sackett – cases involving administrative enforcement orders under the CWA. See Hardesty. But the core holding in Sackett could also find a place in challenges to other types of agency action, even outside the environmental context, as it did in Furie. As cases such as Furie demonstrate, the key inquiry continues to be whether the action challenged is “just another step in the deliberative process” or whether the only action left to be taken is government enforcement.

As a matter of fact, as another blogger points out, EPA has recognized that Sackett applies to a wide variety of cases:

EPA has now formally acknowledged that the Sackett decision has implications for other statutes. In a memorandum dated March 21, 2013, EPA’s Office of Enforcement and Compliance Assurance has concluded that it is important to advise recipients of EPA unilateral orders under other programs of their opportunity to seek pre-enforcement judicial review of such orders.

In particular, EPA has directed enforcement staff to immediately begin adding the following language to typical unilateral orders under FIFRA, Clean Air Act, Safe Drinking Water Act and EPCRA: “Respondent may seek federal judicial review of the Order pursuant to [insert applicable statutory provision providing for judicial review of final agency action.]”

The foregoing language applies, inter alia, to stop sale, use or removal orders under FIFRA §13, stop work or compliance orders under Clean Air Act §§113(a) and 167, and emergency and compliance orders under EPCRA §§ 325(a).

With respect to compliance and corrective action orders under RCRA §§3008(a), 3008(h), 9003(h) and 9006(a), EPA’s Memorandum directs enforcement staff to include language advising respondents that they may seek administrative review in accordance with 40 CFR Part 22 or 24 as applicable.

EPA’s March 21, 2013 Memorandum states that EPA believes that the reasoning in Sackett does not lead EPA to believe that similar language is appropriate for unilateral orders issued under statutory authorities other than those discussed in the Memorandum, and it is noteworthy that the EPA Memorandum makes no reference to unilateral orders under CERCLA.

This is good news for landowners facing all sorts of environmental enforcement actions by EPA.

The Forest Roads Litigation: A Win for Landowners, but the Long Journey Continues

I'm grateful to the editors of the South Carolina Forest Steward, sponsored by Clemson's University's Cooperative Extension Service and the South Carolina Forestry Commission, for asking me to provide their readers with an update on the forest roads litigation following the U.S. Supreme Court's recent decision. This is a great newsletter that forest landowners throughout the Southeast may be interested in.

The article is reproduced below. This article was written as an analysis of the Court's decision, so it is not an up-to-the-minute update. I'll be providing that update in an upcoming post over the next couple of weeks.

The Forest Roads Litigation: A Win for Landowners, but the Long Journey Continues

Imagine if you needed to ask the federal government’s permission to harvest timber. Recently, the U.S. Supreme Court rejected an environmental organization argument to require just that. In March, the Court reversed a Ninth Circuit Court of Appeals decision that required forest and logging roads to be permitted under the Clean Water Act. See Decker v. Nw. Envtl. Def. Ctr., 568 U.S. _ (2013) (consolidated cases 11-338 and 11-347). You may recall that the Ninth Circuit is the court that gave us the highly-publicized decisions protecting the spotted owl in the Pacific Northwest and eliminating timber harvesting in many communities. It is also the court that the Supreme Court overturned last year in an important case that for the first time gave landowners the right to take the U.S. Environmental Protection Agency (“EPA”) to court when it issues fines and penalties against the landowners. See Sackett v. EPA, 132 S. Ct. 1367 (2012).

Forestry professionals and forest landowners were paying attention to this case because it addressed two important questions. First, would all forest and logging roads require a time-consuming and expensive permit? Second, would forest landowners be exposed to the risks of citizen suits by environmental organizations seeking to enforce the Clean Water Act? These questions made the Decker case the most important environmental regulatory decision for forestry professionals and forest landowners in recent memory. For the small landowner in the Southeast, permitting costs alone had been estimated at minimum to be $3.13 per acre per year—and as high as $21.46 per acre per year. See http://nafoalliance.org/wp-content/uploads/Road-Permit-Costs-in-South1.pdf.

Although the Decker decision was a big win for the forestry community, it poses some risks for the future. Ultimately, environmental and regulatory problems are political problems; you should continue paying attention to this issue and discuss it with your elected officials.

The Forest Roads Litigation

The Supreme Court’s decision in Decker is just the latest in a long fight over the murky provisions of the federal Clean Water Act. The parties have already been litigating this issue for about seven years. Some background about the Clean Water Act will help frame this discussion. Under the Clean Water Act, pollutants may not be put into waters of the United States by a “point source” without a National Pollutant Discharge Elimination System (“NPDES”) permit. A point source is more or less any discreet conveyance that could discharge pollutants, such as a pipe, ditch, channel, tunnel, or conduit. Nonpoint sources are not regulated. Congress chose to regulate pollution this way because the technology of the 1970’s could only feasibly regulate point sources. Over the past 40 years, we have become very good at assessing and treating point source pollution. We have not been as successful dealing with pollution from non-point sources, and so environmental organizations have been attempting to cast ever-wider nets using outdated laws.

In a lawsuit attempting to do just that, in 2006, a nonprofit organization based at Lewis & Clark Law School called the Northwest Environmental Defense Center (“NEDC”) sued a group of landowners—the Oregon State Forester, the Oregon Board of Forestry, and various timber companies—in federal court. NEDC argued that the system of ditches, culverts, and channels that collected stormwater on two forest roads that the landowners used in the Tillamook State Forest required were point sources.

The landowners argued that the roads and their associated natural stormwater systems were exempt from NPDES permitting because they fell under EPA’s longstanding Silvicultural Rule. The Silvicultural Rule was developed in 1976. It exempts most silvicultural activities from classification as a “point source”, including “nursery operations, site preparation, reforestation and subsequent cultural treatment, thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage, or road construction and maintenance from which there is natural runoff.” 40 C.F.R. § 124.85 (1976).

The federal trial court dismissed NEDC’s case. It agreed with the landowners that the timber road runoff collected into a system of ditches, culverts, and conduits and were exempt from permitting requirements under the Silvicultural Rule. Nw. Envt’l Def. Center v. Brown, 476 F. Supp. 2d 1188 (D. Or. 2007). On appeal, however, a panel of judges on the Ninth Circuit struck down the Silvicultural Rule in August 2010. The landowners asked the Ninth Circuit to reconsider the issue before a much larger panel of judges. It agreed and issued a new decision in May 2011, but it still held that the Silvicultural Rule was invalid. See Nw. Envtl. Defense Ctr. v. Brown, 640 F.3d 1063 (9th Cir. 2011). It said that when agencies adopt rules, those rules must be consistent with the statutes they are developed under—and the Silvicultural Rule was inconsistent with the Clean Water Act.

The state of Oregon appealed the ruling to the U.S. Supreme Court, with the support of 25 other states, as well as a number of forest landowners and forest industry organizations. As the parties submitted their written arguments, most observers thought that the forestry interests had the stronger case. On the eve of oral arguments, however, EPA surprised everyone by issuing—in record time—a new rule to replace the rule that the Ninth Circuit struck down. EPA said the new rule left the U.S. Supreme Court with no reason to hear the case. Consequently, instead of talking about the substance of the case, the parties spent all their time arguing about what should happen to the case after the new rule. The Supreme Court Justices, as you might imagine, were not happy that they had not been told about this new development, and so they ordered the parties to submit additional written arguments about the new EPA rule.

Meanwhile, out in the Ninth Circuit, NEDC immediately sued EPA seeking to have the new rule declared invalid. Forest industry groups requested to intervene in the case, which the Ninth Circuit allowed. The industry groups were concerned because the new rule only addresses logging roads, which are temporary roads. The new rule specifically stated that EPA was still considering what to do with more permanent forest roads. Don’t expect the Ninth Circuit to determine whether the rule is valid before the end of 2013.

Implications

This brings us to the U.S. Supreme Court’s decision in Decker. After the complications of EPA’s new rule, 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, the Supreme Court did, saying that EPA’s rules exempt “discharges of channeled stormwater runoff from logging roads form the NPDES permitting scheme.” It reasoned that EPA’s interpretation of its own regulations 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 commentators and scientists have pointed out, that a nationwide Clean Water Act permitting regime might actually lead to less clean water. In doing so, it recognized the importance of allowing landowners and the forestry community to work together voluntarily to address environmental problems, rather than requiring a control-and-command regulatory environment.

The Decker decision, however, was not all good news for the forestry community. The Supreme Court said that it was proper for the NEDC to bring its challenge to the Silvicultural Rule, which was over 30 years old. Normally, a rule created by an agency can only be challenged for a short period of time before it becomes law. The Supreme Court ruled that because the challenge was actually to whether the landowners had proper permits under the Clean Water Act, 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 open to these lawsuits, even if they follow all of the agencies’ rules and recommendations. With this risk, and the new outstanding lawsuit out in the Ninth Circuit, the Clean Water Act remains an issue that the forestry community must stay abreast of.

What can you do? To keep from being surprised, forest landowners and forestry professionals may want to start thinking through their contracts. It was already a good idea to keep track of who is responsible for getting environmental and land use permits, but with legal uncertainty still looming, it may also be a good idea to include in contracts language that determines who should pay for, draft, and submit permit applications that are developed after a contract is signed.

As for a long-term solution, congressional action permanently exempting silviculture in all its forms from the Clean Water Act would 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. Bills have been filed over the last couple of years that would have solved all of this litigation, but they were not passed. You can help by calling your U.S. senators, congressmen, and congresswomen and asking them to reintroduce or support the Silvicultural Regulatory Consistency Act (last year’s bills were numbers H.R. 2541 and S. 1369). Remember, as I mentioned, that with all environmental law and regulatory problems, the real solution is political.

Jacob T. Cremer practices property rights, environmental, and land use law at Smolker, Bartlett, Schlosser, Loeb & Hinds, P.A., based in Tampa, Florida. His passion for these areas of the law comes from growing up in a family that has been involved in forestry in Florida for five generations and in South Carolina for thirty years. He assisted counsel of record before the U.S. Supreme Court for the landowners in Stop the Beach Renourishment, Inc. v. Fla. Dep't of Envtl. Prot., 130 S. Ct. 2592 (2010). He co-authored an amicus brief to the U.S. Supreme Court in support of the landowner in Koontz v. St Johns River Water Management District, No. 11-1447 (argued Jan. 15, 2012). Follow the developments on the cases discussed here and others at his blog, The Florida Land Environment, www.jacobtcremer.com.

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, www.jacobtcremer.com.

U.S. Supreme Court Says No Clean Water Act Permit Needed for Logging Roads, Raises Other Questions for Landowners and Agencies

In a victory for landowners, the U.S. Supreme Court just issued its opinion in the forest roads case, Decker v. NEDC, 568 U.S. _ (2013) (consolidated: Decker v. NEDC, No. 11-338, and Georgia-Pacific West, Inc. v. NEDC, No. 11-347). The Supreme Court began by breezing past the argument by EPA and the environmental plaintiff that the case was moot because of EPA's newly-revised rule exempting logging roads from permitting under the Clean Water Act. It held that the new rule was irrelevant to the merits of the case before it because the landowners might still be liable for penalties under the old rule for past violations of the Clean Water Act.

On the merits, the Supreme Court held that EPA's rules exempt "discharges of channeled stormwater runoff from logging roads from the NPDES permitting scheme." Slip Op. at 15. The Court reasoned that EPA's reading of its regulations was reasonable, was longstanding, and complied with the intent of the Clean Water Act:

It is well established that an agency’s interpretation need not be the only possible reading of a regulation—or even the best one—to prevail. When an agency interprets its own regulation, the Court, as a general rule, defers to it “unless that interpretation is ‘plainly erroneous or inconsistent with the regulation.’” Chase Bank USA, N. A. v. McCoy, 562 U. S. _, _ (2011) (slip op., at 12) (quoting Auer, 519 U. S., at 461). The EPA’s interpretation is  a permissible one. Taken together, the regulation’s references to “facilities,” “establishments,” “manufacturing,” “processing,” and an “industrial plant” leave open the rational interpretation that the regulation extends only to traditional industrial buildings such as factories and associated sites, as well as other relatively fixed facilities associated sites, as well as other relatively fixed facilities.  

There is another reason to accord Auer deference to the EPA’s interpretation: there is no indication that its current view is a change from prior practice or a post hoc justification adopted in response to litigation. See Christopher v. SmithKline Beecham Corp., 567 U. S. ___, ___ (2012) (slip op., at 10). The opposite is the case. The agency has been consistent in its view that the types of discharges at issue here do not require NPDES permits.  

The EPA’s decision exists against a background of state regulation with respect to stormwater runoff from logging roads. The State of Oregon has made an extensive effort to develop a comprehensive set of best practices to manage stormwater runoff from logging roads. These practices include rules mandating filtration of stormwater runoff  before it enters rivers and streams, Ore. Admin. Rule 629–625–0330(4) (2012); requiring logging companies to construct roads using surfacing that minimizes the sediment in runoff, Rule 629–625–0700(2); and obligating firms to cease operations where such efforts fail to prevent visible increases in water turbidity, Rule 629–625–0700(3). Oregon has invested substantial time and money in establishing these practices. In addition, the development, siting, maintenance, and regulation of roads—and in particular of state forest roads—are areas in which Oregon has considerable expertise. In exercising the broad discretion the Clean Water Act gives the EPA in the realm of stormwater runoff, the agency could reasonably have concluded that further federal regulation in this area would be duplicative or counterproductive. Indeed, Congress has given express instructions to the EPA to work “in consultation with State and local officials” to alleviate stormwater pollution by developing the precise kind of best management practices Oregon has established here. 33 U. S. C. §1342(p)(6). 

Slip Op. at 14-15. The Court's resolution of this issue seems to still leave the Ninth Circuit litigation on the EPA's new rule in play. I'll continue following that issue.

Beyond the immediate comfort that this opinion should give forest landowners, there are two significant issues that could have broader implications. First, we could see an increase in citizen-suit environmental litigation under the Clean Water Act. The Supreme Court held that "the instant suit is an effort not to challenge the Silvicultural Rule but to enforce it under a proper interpretation." Slip Op. at 9. It just happens to be that the NEDC's reading of the rule did not match EPA's. Therefore, "[t]he present action is within the scope of §1365. It is a claim to enforce what is at least a permissible reading of the Silvicultural Rule." Slip Op. at 8. Consequently, environmental organizations will most certainly argue in the future that regulations are ambiguous and should be interpreted in a different--and novel--way that implicates liability for landowners. What's a landowner to do if it can be sued for following a regulation in exactly the way that EPA interprets it?

The second broader implication, as the New York Times notes, is Justice Scalia's call for review in his dissent of the longstanding principle of administrative law that executives agencies receive great deference to agency interpretations of their own regulations:

The Court gives effect to a reading of EPA’s regulations that is not the most natural one, simply because EPA says that it believes the unnatural reading is right. It does this, moreover, even though the agency has vividly illustrated that it can write a rule saying precisely what it means—by doing just that while these cases were being briefed. Enough is enough. 

Justice Scalia forcefully argues that, while there may be reasons to defer to an agency's interpretation to a statute where Congress has purposefully delegated authority to the agency, there is no good reason to do the same for an agency when it interprets its own rule. "For decades, and for no good reason, we have been giving agencies the authority to say what their rules mean, under the harmless-sounding banner of “defer[ring] to an agency’s interpretation of its own regulations.” Ultimately, he says, "He who writes a law must not adjudge its violation."

This idea seems quite reasonable to me, just as it did to Chief Justice Roberts and Justice Alito. They, however, recognized the argument goes "to the heart of administrative law." Accordingly, while they expressed some interest in reconsidering this principle, they felt this case was not the proper vehicle for the argument because it had not been argued in any depth. At the very least, Justice Scalia's dissent should give rise to some interesting petitions for certiorari to the Supreme Court in the coming days.

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.

In Forest Roads Case, Path for U.S. Supreme Court Still Unclear as Supplemental Briefs Arrive

As the supplemental briefs arrive in the forest roads case (consolidated: Decker v. NEDC, No. 11-338, and Georgia-Pacific West, Inc. v. NEDC, No. 11-347), it remains unclear what the U.S. Supreme Court will do with the case. My readers will recall that what was shaping up to be a win for the forestry community (and the environment) was thrown into disarray when EPA surprised everyone by issuing a new rule on the eve of the U.S. Supreme Court's consideration of the old rule.

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.

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.

Changes in Environmental Law to Watch for in President Obama's Second Term

In an interesting series of articles, attorneys on the West Coast have been writing about the changes to watch for in environmental law in the under President Obama's second term administration. The articles include:

• A summary of air, energy, water, natural resources, and waste policy change:

The Obama Administration is expected to advance major changes to energy and environmental laws in the next four years. There is already a backlog of pending legislation and proposed regulation to work through, and both environmental and industry groups will press for major reforms.

• A detailed look at changes in air quality rules:

Now that the election is over, EPA is expected to begin moving forward a crowded air docket, including greenhouse gas standards for utilities and refineries, updates to ambient air quality standards for particulate matter and ozone, and several rules that are being rewritten in response to legal challenges. Utilities, refineries, and operators of industrial boilers will all face new requirements specific to their source categories, as well as potential for further constraints due to more stringent, generally applicable ambient air quality standards. Final action on the first of these rules is expected before the end of 2012.

• A overview of the future of energy policy:

The first Obama administration saw many proposals, but few final actions on new federal regulation of oil and gas production. That pattern appears likely to change in the President’s second administration. The boom in oil and gas production is creating a counter-boom in litigation aimed at stopping or limiting development, and both industry and environmentalists are pressing their case as to the role the federal government should play in an era of greater energy abundance.  

• A discussion considering why waste policy may be a bigger issue than considered at first glance:

Compared with some other items on the Obama Administration’s second term agenda, hazardous waste and chemicals regulation is not as likely to be seen as an area of significant change. That’s a mistake. A number of issues are percolating at or just below the surface of the Administration’s regulatory priorities in this area that may bring significant change over the next four years.

Each issue discussed will not necessarily affect every landowner, but the takeaway here is that we could see some significant changes to our federal environmental laws and regulations over the next four years.

Friday Roundup of Environmental & Property Rights Cases before the U.S. Supreme Court

This was a big week at the U.S. Supreme Court for environmental and property rights cases. What's my soundbite? The environmental cases are extremely unlikely to actually resolve anything, which will certainly lead to more litigation. The property rights case was a big win for landowners.

First, as I discussed earlier in the week, the Court issued its opinion in Arkansas Game & Fish Commission v. United States, No. 11-597 (cert. granted Apr. 2, 2012), holding that where the government causes flooding, even if the flooding is merely temporary and non-recurring, it may be liable for a taking. Commentary and recaps:

• SCOTUSblog analysis of the opinion.
• Collection of commentary at SCOTUSblog.
• Robert Thomas at InverseCondemnation collects commentary and gives his own detailed thoughts.

Second, the Court heard the Forest Roads case (consolidated: Decker v. NEDC, No. 11-338, and Georgia-Pacific West, Inc. v. NEDC, No. 11-347). As I blogged about previously, EPA issued a new final rule about logging roads on the eve of oral arguments, so the Court spent most of its time discussing what should be done in light of the new development. After this, I question whether this case will actually resolve anything about the Clean Water Act. Commentary and recaps:

• The SCOTUSblog preview and recap.
• Lawrence Hurley reports over at Greenwire.
• From the New York Times.
• The National Alliance of Forest Owner's blog, which as always, boils down the legalese into something that's easy to understand, if unfortunate: "Perhaps the most significant impact of the new rule is that it will perpetuate litigation in the Ninth Circuit with the added twist that, since the rule applies nationwide, whatever the Ninth Circuit ultimately decides will apply nationwide as well. The NEDC attorney told the Court in very clear terms that NEDC intends to continue litigation by whatever means to require permits for forest roads, stating:“…we contend that the new rule simply violates the statute, and we have a right to bring a citizen suit for a violation of the Clean Water Act itself…I think that what we’ll do is proceed whatever way we can.”"

Third, the Court heard the other Clean Water Case, Los Angeles County Flood Control District v. NRDC, No.11-460 (cert. granted June 25, 2012). As with Decker, it appears that this case may not end up resulting in much insight because all parties agreed the Ninth Circuit was wrong; they just disagreed on how to fix the error. It also appears that most of the arguments are permit-specific and an opinion from the Court would likely be confined to the facts. Commentary and recaps:

• SCOTUSblog has a great preview and excellent recap of why this case will probably not end up being all that important.
• The transcript.
• From the L.A. Times.
• One Los Angeles blog thinks this case was all about money behind the scenes.

U.S. Supreme Court Hears Forest Roads Case: Legal Uncertainty Very Likely to Continue

The U.S. Supreme Court heard the forest roads case today (consolidated: Decker v. NEDC, No. 11-338, and Georgia-Pacific West, Inc. v. NEDC, No. 11-347). Boy, how things change in just a few days. What was postured to have been a heavyweight brawl with industry, Oregon, and EPA favored by a wide margin appears likely to become a mere footnote in environmental law.

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.

Forest Roads Update: EPA Finalizes New Logging Road Rule on the Eve of U.S. Supreme Court Arguments

Tomorrow, the U.S. Supreme Court will hear oral arguments in the forest roads case (consolidated: Decker v. NEDC, No. 11-338, and Georgia-Pacific West, Inc. v. NEDC, No. 11-347). I've been following this legal battle for quite some time, so my readers know its importance for forest landowners. The statutory and regulatory mechanisms in play are complex, which has made the case tough to follow. The National Alliance of Forest Owners, however, has boiled down the legal arguments in the briefs of the parties and the many amici to three main questions:

• Is the Silvicultural Rule defining these roads as nonpoint sources 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 NEDC to file this case in a federal district court 30 years after the Silvicultural Rule became final?

SCOTUSblog, as usual, has a great preview of the case:

Next week, in Decker v. Northwest Environmental Defense Center and Georgia-Pacific West, Inc. v. Northwest Environmental Defense Center, the Court will review a controversial Ninth Circuit environmental decision that has swept up all three branches of government. A panel of the court that included Justice Breyer’s younger brother Charles, sitting by designation, rejected the Environmental Protection Agency’s view that the federal Clean Water Act does not require permits for stormwater runoff from ditches and culverts on roads used for harvesting lumber (i.e., logging). Congress was sufficiently unhappy with the decision that bipartisan majorities enacted legislation to stay permitting until the beginning of this Term, and members of Congress have introduced legislation seeking to restore EPA’s former approach. To top it all off, EPA recently released proposed regulations for comment that, if finalized, would “clarify” that such stormwater runoff is not subject to permitting. 

The case is of central importance to the logging industry and businesses that rely on it. If the Ninth Circuit’s decision is upheld (and, of course, the regulations exempting logging roads are not finalized soon), in the near term, it would mean a significant additional regulatory burden on logging operations because of the expense in obtaining permits, the ability of environmental groups to delay the permitting process, and the “mind boggling” number of logging roads nationally – there are an estimated 15,000 miles of logging roads in the State of Maine alone and hundreds of thousands more in the Northwestern United States. Depending on the Court’s rationale, a variety of work-arounds (from revised EPA regulations to blanket permits) could render the impact manageable in the longer term, but there is no question that affirmance would be disruptive to the logging industry. 

When the case was first granted, many believed that the case reflected overreaching by the Ninth Circuit and concluded it was headed towards certain and overwhelming reversal. The Northwest Environmental Defense Center (“NEDC”) – the plaintiff below, but the respondent at the Court – must “run the table” and win every issue presented to prevail. Still, the case’s fate is far from clear. 

*** 

On balance, the NEDC has the more difficult challenge: It must win all threearguments to prevail. But while the early consensus appeared to be that the Supreme Court would clearly reverse the Ninth Circuit’s decision, focusing on the Silvicultural Rule, as argument approaches, it appears the case presents some closer questions. The jurisdictional issue is of particularly broad importance, because affirmance could broaden the ability to challenge EPA interpretations of regulations.

Meanwhile, EPA's new logging road rule was signed on Friday. It will go into effect 30 days after it is published, which should be soon. The rule is nearly identical to the proposed rule, which I discussed here. The industry has criticized the rule as poorly timed and creating legal uncertainty, even though it clarifies that logging roads are not be subject to the mandatory NPDES permit requirement under Phase 1 of the stormwater program for discharges associated with industrial activity.

Yes, Silviculture is Agriculture: Forest Roads Case to be Argued Next Week Before U.S. Supreme Court

If it were up to your environmental organizations, your local tree farmer couldn't call himself a farmer. And he doesn't have a tree farm. No, he is an industrial titan - just as much an industrial operation as mining, oil exploration, and heavy equipment manufacturing.

What? Even though silviculture is simply the agriculture of trees? Even though silviculture is always regulated as agriculture? And EPA says forestry is agriculture? Incredibly, that is just the argument being made by NEDC in the forest roads litigation to be heard before the U.S. Supreme Court next week (consolidated: Decker v. NEDC, No. 11-338, and Georgia-Pacific West, Inc. v. NEDC, No. 11-347). Absurd arguments like this show the disconnect these days between environmental advocacy and reality.

The closing reply briefs of the forest and silviculture interests were filed recently, just ahead of the oral arguments. Georgia-Pacific's brief makes some strong technical arguments about the Clean Water Act, but its strength is in explaining the practicalities of forestry. For example, as lampooned above, the NEDC argued that the timber harvesting is industrial activity, twisting those words almost to their breaking point. Georgia-Pacific, however, points out that silviculture is no more industry than agriculture is: "The use of a chain saw, feller buncher, or cable-yarder to harvest trees no more makes logging 'industrial' than using a 20-ton combine to pick and segregate corn makes crop harvesting 'industrial.'" Consequently, "EPA has determined that forestry roads and silvicultural harvesting ... more closely resemble agricultural land uses than industrial uses."

Georgia Pacific's brief makes four main legal arguments:

• Channeled forest road runoff is not a discharge "associated with industrial activity."
• Channeled forest road runoff is not a "point source" discharge.
• The respondent environmental organization's interpretations would undermine the purpose of the CWA.
• The U.S. Supreme Court lacks jurisdiction to invalidate EPA regulations in this kind of enforcement action.

The brief by the State of Oregon  focuses on the Ninth Circuit's refusal to defer to the expertise of the EPA. Normally, courts are supposed to give the opinions and rules of expert agencies great weight, but in the case below, the Ninth Circuit did not do that: 

Here, EPA has consistently interpreted its stormwater discharge rule to exclude stormwater runoff from forest roads from the permitting requirements and its interpretation is consistent with the text of the rule and EPA's expressed intention when it adopted the rule. In light of its unfaltering interpretation of its rule, EPA's interpretation binds this Court. 

But respondent now suggests that this Court should simply pretend as if the very regulation that respondent is seeking to enforce does not exist at all because the relevant statutory language is "plainly dispositive." (Resp. Br. 17). Yet in so arguing, respondent fails to grapple with the two roadblocks in its path: (1) this Court's longstanding recognition that when Congress entrusts an agency with the responsibility to carry out Congress' directives and that agency carries out its responsibility by adopting a rule, the agency's regulations executing those directions cannot simply be ignored; and (2) the limitations on the scope of review in a citizen suit, which preclude a reviewing court from rejecting an agency's regulations because, in the court's view, the agency's interpretation is inconsistent with the relevant statute.

Stay tuned. The Supreme Court will hear this case next week. I'll post commentary once the transcripts are released. In the meantime, catch up on the history of this dispute in my archives.

Environmental Organization Files Brief in Forest Roads Litigation before U.S. Supreme Court

The Northwest Environmental Defense Center (NEDC), a non-profit environmental organization, has filed its brief in the forest roads case before the U.S. Supreme Court (consolidated: Decker v. NEDC, No. 11-338, and Georgia-Pacific West, Inc. v. NEDC, No. 11-347). Before I jump into the summary, here's a quick reminder of where we're at. It all started when the Ninth Circuit struck down EPA's longstanding Silvicultural Rule under the Clean Water Act, which meant that many forest landowners would need federal stormwater permits for their forest and logging roads. In response, last December, Congress stayed NPDES permitting through October 1, 2012. EPA worked much of this year to develop revisions to its Clean Water Act rules for logging roads (but it is still working on what to do with the broader category of forest roads).

Meanwhile, courts and legal commentators urged the U.S. Supreme Court to grant certiorari and hear the case, although the U.S. Solicitor General recommended against it. Ultimately, the U.S. Supreme Court agreed to hear the case. Now, the case is being briefed, and the U.S. Solicitor General decided to support petitioners (the landowners). You can read all of my blog posts on this issue here.

NEDC argues that the Ninth Circuit's opinion was correct because:

1. The Court has subject matter jurisdiction because the NEDC's citizen suit seeks to enforce EPA's regulations, rather than challenge them. 
2. This case only involves the active channelization of water into ditches and conveyances that go along with logging roads and are discharges that must be permitted. It doesn't involve non-point sources or natural runoff.
3. The accumulation of sediment into the water is an "acute environmental problem" that the EPA must address.

We'll see the landowners' responses to these points soon enough, but here is some food for thought. NEDC's first point seems to be one of those games we lawyers play with words and semantics. Even though NEDC was seeking to enforce EPA's regulations, it still challenged EPA's interpretation of them. The second point is well taken. But it does not squarely address the landowners' argument, which is not whether there is a discharge, but rather whether that discharge is associated with industrial activity, as required by law.. The third point is not especially compelling, since it basically argues that the Court should ignore out the landowners' policy reasoning but accept its own.

EDIT: 10/31/12 - Originally, I mistakenly used the acronym "NRDC," rather than NEDC. This may have called to mind for my readers familiar with environmental organizations the Natural Resource Defense Counsel. That organization is not a party to the case. Thanks to my readers for pointing out the mistake, which has now been corrected.

United States Files Brief Supporting Forest Landowners in Forest Roads Litigation

Along with the petitioners' briefs filed earlier this month in the forest roads case before the U.S. Supreme Court were numerous amici briefs. Groups as diverse as agriculture interests, home builders, environmental organizations, and law professors filed briefs as friends of the Court in Decker v. NEDC and Georgia-Pacific West, Inc. v. NEDC. The one to watch is the well-researched brief by the United States.

Recall that the U.S. Solicitor General previously recommended that the U.S. Supreme Court not hear the case, mostly arguing that there was no reason for the Court to act because both EPA and Congress were moving expeditiously toward a solution. Now the Court has accepted the case, however, the United States is arguing in support of forest landowners. 

Here's the U.S. Solicitor General's summary of its brief:

I. The courts below properly exercised jurisdiction over this action pursuant to the CWA’s citizen-suit provision. Because the EPA regulations relevant to this case (the Silvicultural Rule and the Phase I industrial stormwater regulation) could have been challenged in a court of appeals under 33 U.S.C. 1369(b) at the time they were promulgated, they are not subject to judicial review in this citizen suit brought under 33 U.S.C. 1365(a). The court of appeals did not declare either of those rules invalid, however, but rather rejected the interpretations of those rules set forth in the overnment’s amicus brief. Although the court should have deferred to EPA’s reasonable construction of its own rules, it did not err in entertaining this citizen enforcement suit.

II. The court of appeals misinterpreted both of the EPA regulations at issue in this case. Properly construed, each of those rules independently dictates the conclusion that NPDES permits are not required for the discharges at issue.

A. EPA’s construction of its own rule is “controlling” unless that construction is “plainly erroneous or inconsistent with the regulation.” Auer v. Robbins, 519 U.S. 452, 461 (1997). That principle applies even where, as here, the court is precluded from determining whether the regulation so construed is consistent with the governing statute. See Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 418-419 (1945).

B. The CWA requires NPDES permits for stormwater discharges “associated with industrial activity,” 33 U.S.C. 1342(p)(2)(B), but the Act does not define that term. EPA has construed its Phase I industrial stormwater regulation not to require such permits for stormwater discharges from logging roads. That position reflects a reasonable construction of the regulation’s text. The Phase I regulation refers to discharges from “[f]acilities classified as Standard Industrial Classification[] 24,” which include logging establishments. 40 C.F.R. 122.26(b)(14)(ii). EPA has construed that reference, however, as encompassing only discharges from the four subcategories of silvicultural facilities it had already identified as point sources in the Silvicultural Rule, which do not include runoff from logging roads. Because the stormwater discharges at issue in this case are not covered by EPA’s Phase I regulations, the judgment of the court of appeals should be reversed, without regard to whether those discharges are “point source” discharges under the Act and the Silvicultural Rule.

C. Because the Phase I regulation (properly construed) provides a sound basis for concluding that petitioners were not required to obtain NPDES permits, the Court need not determine whether the Silvicultural Rule also compels the same result. If the Court reaches the issue, however, it should sustain EPA’s interpretation of the Silvicultural Rule, under which no permit is required for “natural runoff ” from logging roads. The stormwater discharges at issue here do not implicate any of the four types of silvicultural facilities (“rock crushing, gravel washing, log sorting, [and] log storage facilities”) that the rule specifically identifies as “[s]ilvicultural point source[s].” 40 C.F.R. 122.27(b)(1). And while the Silvicultural Rule does not state explicitly whether its reference to “natural runoff ” includes systematically channeled runoff, EPA’s resolution of that ambiguity is entitled to judicial deference under Auer.

The court of appeals rejected EPA’s reading on the ground that it would render the Silvicultural Rule inconsistent with the CWA’s definition of “point source.” Seminole Rock, however, precludes that sort of inquiry under the circumstances presented here because EPA’s interpretation of its Rule is controlling. In any event, the CWA’s definition of “point source,” 33 U.S.C. 1362(14), affords EPA “room here for some exclusion by interpretation,” particularly with respect to silvicultural sources. NRDC v. Costle, 568 F.2d 1369, 1377 (D.C. Cir. 1977).