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U.S. EPA Throws Supreme Court A Curveball By Issuing Final Logging Rule The Day Before Oral Argument

Siros_Steven_COLORBy Steven M. Siros


On December 3, 2012, the U.S. Supreme Court heard oral arguments in the consolidated cases of Decker v. Northwest Environmental Defense Center and Georgia Pacific v. Northwest Environmental Defense Fund Center. At issue in both of these cases is the Ninth Circuit's 2010 decision that found that channelized storm water from logging roads that eventually flows into streams and rivers requires a NPDES permit under the Clean Water Act ("CWA").

There were three basic issues that were expected to be argued before the Court:

  • Does the CWA allow the respondents (hereinafter, "NEDC") to challenge the validity of the Silvaculture Rule more than 30 years after it was finalized?
  • Was the Silvaculture Rule, which defines logging roads as nonpoint sources, an appropriate exercise of U.S. EPA discretion in light of the specific statutory language in the CWA?
  • Did U.S. EPA appropriately exclude logging from the industrial activity category which requires storm water discharge permits?

In order to prevail, NEDC would need to prevail on each of these three questions.

Interestingly, on the Friday before the Monday oral argument, U.S. EPA threw the parties a curve ball when it issued a final rule revising 40 CFR 122.26(b)(14)(ii) to clarify that storm water discharges associated with logging roads do not require storm water discharge permits. The final rule and website notice specifically refers to the Ninth Circuit's decision, noting that the rule is intended to address the uncertainty created by the Ninth Circuit's holding and to clarify U.S. EPA's intent that these logging roads are not subject to the Section 402 NPDES permitting framework.

Not surprisingly, the new rule dominated oral argument with Chief Justice Roberts starting things off by congratulating petitioners on "getting almost all the relief they're looking for under the new rule issued on Friday." Timothy Bishop, arguing on behalf of the petitioners, attempted to convince the Court that it should still decide the merits of the case. Mr. Bishop argued that the issue of whether U.S. EPA could properly exclude logging activities from the definition of activities associated with industrial activity was an issue that had been briefed and could be decide by the Court. The Court seemed less sure, with Justice Kagan noting that the question had not been decided by the Ninth Circuit and asking if it "would be good practice to decide this issue without any briefing on it and without a decision below".

The Court seemed inclined to vacate the Ninth Circuit's decision in light of the newly issued U.S. EPA rule but posed a number of questions as to what would happen if the Ninth Circuit decision were allowed to stand. Mr. Bishop explained that his clients were concerned that respondents might continue to seek attorneys' fees and penalties as prevailing parties if the Ninth Circuit decision were allowed to stand. Several justices seemed concerned over that potential scenario.

When it came time for the United States to present its amicus argument, Deputy Solicitor General Malcolm Stewart was peppered with questions from the justices as to why he had not notified the Court that U.S. EPA would be issuing its final rule the Friday before a Monday oral argument. The Deputy Solicitor General insisted he had just learned about the final rule on Friday and had immediately notified both parties. The Court did not appear satisfied with that explanation, with Chief Justice Roberts noting that "there were 875 pages on the merit briefing in this case, and if we knew that the final rule was imminent, we could have rescheduled the case for April or something along those lines."

With respect to the merits of the case, the Deputy Solicitor General expressed his view that the final rule rendered this matter moot (which would require dismissal of the case and presumably vacation of the Ninth Circuit opinion). In response to questions from the Court, the Deputy Solicitor General expressed his view that respondents would not be prevailing parties and therefore should not be entitled to attorneys' fees nor should petitioners be subject to civil penalties for past violations.

On behalf of respondents, Jeffrey Fisher started his argument by asking the Court to dismiss the petition for certiorari as having been improvidently granted. Mr. Fisher reminded the Court that the case was interlocutory in nature having reached the Court on the Ninth Circuit's reversal of the District Court's decision to dismiss the case under Rule 12(b)(6).

The effect if the Court were to dismiss the petition as having been improperly granted is somewhat unclear. Mr. Fisher apparently believes that the case would go back before the Ninth Circuit although it would seem that the effect of dismissal of the petition would be that the case would go back to the District Court. Clearly, petitioners seek to preserve the Ninth Circuit's decision holding that discharges from logging road that are channeled through ditches are point source discharges. Petitioners would then be free to mount a challenge to U.S. EPA's storm-water regulations without having to re-litigate the issue as to whether these discharges are in fact point sources. However, it appeared that several of the justices were uncomfortable with allowing the Ninth Circuit opinion to stand.

It will be interesting to see how the Court reacts to U.S. EPA's newly issued final rule which clearly was intended to provide the Court with a convenient excuse to avoid ruling on the merits of this case (which is really the position that had been urged by the United States in the first instance when it argued that the certiorari petition shouldn't be granted). An opinion is expected to be issued sometime next year. To view a transcript of the oral argument, please click here.