Justices uphold EPA's policy on logging road runoff

Posted: Mar 22, 2013

Written by

Jeremy P. Jacobs, Greenwire
logging road

The Supreme Court today upheld U.S. EPA's policy for regulating stormwater runoff on logging roads in the Pacific Northwest.

The 7-1 ruling in Decker v. Northwest Environmental Defense Center backed EPA's policy that logging roads are not industrial point-source pollution and consequently don't require Clean Water Act permits.

The decision is a blow to environmental groups like the Portland, Ore.-based NEDC, which argued that the channeled runoff carries sediment and other contamination into forest streams, polluting their ecosystems. It was widely welcomed, however, by the timber industry.

Justice Anthony Kennedy, who delivered the court's opinion, noted that days before the court heard arguments on the case in December 2012, EPA amended its policy and formally said the logging roads are not an industrial activity -- and thus do not require the permits.

Kennedy, reading his opinion from the bench this morning, said the modification did not make the case moot and that the judges turned to the rule before the change.

"The pre-amendment rule is a permissible" reading of the regulation, he said. "EPA has been consistent in this interpretation."

The case dates back to August 2010, when the 9th U.S. Circuit Court of Appeals overturned decades of precedent by siding with NEDC and declaring that two logging roads in Oregon's Tillamook State Forest are point sources of water contamination.

That decision made the roads no longer exempt from obtaining National Pollutant Discharge Elimination System (NPDES) permits under the Clean Water Act.

The ruling sparked significant backlash from Congress and states, which previously took the lead in regulating logging roads when NPDES permits weren't required. Under EPA's "silvicultural rule" amended in 1980, most silviculture activities were not required to obtain NPDES permits, which are typically required for point sources such as industrial discharge pipes.

But the San Francisco-based 9th Circuit was sympathetic to NEDC's arguments that stormwater runoff that is channeled into nearby streams is not "natural" and therefore poses a threat to aquatic ecosystems.

The case became more complicated days before justices heard arguments in December, when EPA swiftly finalized a rule that formally exempted logging roads from the NPDES program.

In his written opinion, Kennedy stressed that EPA's rule deserves deference from the court. "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."

Kennedy added that EPA's definition of "industrial" activities subject to NPDES permits leaves "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."

The justices also held that a citizens group may, however, challenge such a regulation in court.

Justice Antonin Scalia dissented, arguing that the court is giving EPA too much deference, particularly since the agency revised the rule in the days leading up to the case's arguments to make it clearer.

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," Scalia wrote. "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," he added.

Justice Stephen Breyer recused himself from the case because his brother, U.S. District Judge Charles Breyer of the Northern District of California, was a member of the appeals court panel.

Industry groups welcomed the ruling.

"The Supreme Court did the right thing by reversing the 9th Circuit on forest roads," Dave Tenny, president of the National Alliance of Forest Owners, said in a statement. "The court's decision validates EPA's longstanding policy that rainwater runoff from forest roads is best addressed through state-adopted best management practices."

NEDC has also filed a challenge to the new EPA rule in the 9th Circuit in case the Supreme Court ruled against it (Greenwire, Jan. 8). It is unclear how today's ruling will affect that case.

Because of that ongoing litigation, Tenny called on Congress to clarify the program.

"We are clearly not out of the woods on litigation," he said. "Congress must give clear direction that the 9th Circuit may not legislate from the bench."

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