Supreme Court to Review Decision Requiring Pollution Permits for Logging Road Runoff

Decker v. Northwest Environmental Defense Center, U.S., No. 11-338, certiorari granted 6/25/12

Key Development: The U.S. Supreme Court will review a Ninth Circuit decision to require discharge permits for logging roads when stormwater runoff is channeled.

Potential Impact: Millions of miles of forest roads may need permits, which will be open to legal challenge.

What's Next: First briefs are expected to be filed with Supreme Court this summer.

By Alan Kovski  

The Supreme Court agreed June 25 to review a decision that required Clean Water Act discharge permits for runoff channeled from logging roads (Decker v. Northwest Environmental Defense Center, U.S., No. 11-338, certiorari granted 6/25/12).

The decision by the U.S. Court of Appeals for the Ninth Circuit upended decades of Environmental Protection Agency policy that avoided application of National Pollutant Discharge Elimination System permitting requirements to millions of miles of forest roads used primarily for logging operations.

In 2010, the Northwest Environmental Defense Center won the Ninth Circuit decision, which was reaffirmed in 2011, saying stormwater runoff from two logging roads in Oregon's Tillamook State Forest must be considered a “point source” subject to NPDES permitting if the water is channeled in any way (Northwest Environmental Defense Center v. Brown, 640 F.3d 1063, 9th Cir. 2011).

The advocacy group, which is affiliated with the Lewis & Clark Law School, took action partly to protect streams from rain-washed silt that can reduce the suitability of stream water for salmon and other aquatic life.

EPA had argued that its Silvicultural Rule allowed logging roads to be treated like farm roads, but the group contended the Clean Water Act does not treat silviculture (forestry) as a type of agriculture.

Solicitor General Rebuffed.

In a brief filed May 24, U.S. Solicitor General Donald B. Verrilli Jr. urged the Supreme Court to allow the Ninth Circuit decision to stand, arguing that EPA would revise its regulations without requiring permits and without need for high court involvement (101 DER A-33, 5/25/12).

But the Supreme Court chose to grant writs of certiorari for two petitions against the Ninth Circuit decision and to consolidate them. The other petition is Georgia-Pacific West v. Northwest Environmental Defense Center, U.S., No. 11-347, certiorari granted6/25/12.

Observers following the case said the filing of briefs would begin this summer, and that oral arguments likely would occur late this year, followed by a decision in 2013.

Timber companies, state and local officials, landowners, and farming and ranching groups have united in petitioning the Supreme Court for review of the Ninth Circuit decision. The decision would entail much time and money on unnecessary permitting, opening the way to more legal challenges to each permit, they argued.

The petitioners insisted it would be best to continue allowing policies that require the use of best management practices. It is best management practices, not paperwork or litigation, that improve water quality, the American Forest Resource Council said in a June 25 statement welcoming Supreme Court involvement.

EPA Regulatory Solution Doubted.

The National Alliance of Forest Owners also welcomed the Supreme Court's announcement. “It validates the opinions of the Solicitor General, 29 state attorneys general and forest owners and operators across the country who all agree that the Ninth Circuit's decision was wrong,” NAFO President Dave Tenny said.

The solicitor general's brief agreed that the Ninth Circuit erred in failing to defer to agency expertise on interpretation of the Clean Water Act as applied to silviculture, an interpretation detailed in 40 C.F.R. § 122.27. But he also said EPA could cope with the appeals court decision without requiring permits.

Timber groups express doubts about a regulatory fix.

“If the decision stands, EPA will be forced to work around a process that has protected the environment for nearly 40 years,” American Forest & Paper Association President Donna Harman said in a June 25 statement. “Any administrative action by EPA will take months if not years to be implemented, and will be open to court challenge. The forest products industry needs the certainty that a favorable U.S. Supreme Court ruling brings.”

EPA and the Justice Department declined to comment on the Supreme Court announcement.

Justice Stephen G. Breyer took no part in the decision on the petitions. Breyer's brother, Judge Charles R. Breyer, participated in the Ninth Circuit decision.

By Alan Kovski