Yesterday the parties in Decker v. Northwest Environmental Defense Center (NEDC) filed supplemental briefs with the Supreme Court. We are pleased that the Solicitor General, Oregon and industry petitioners all urge the Court to remove the Ninth Circuit’s May 2011 decision as case law precedent going forward. Doing so would be an important step toward preserving the U.S. Environmental Protection Agency’s (EPA) longstanding policy of regulating forest roads as nonpoint sources.
The Supreme Court invited the briefs to help determine the impact of the EPA’s new rule clarifying that logging is not an “industrial activity” requiring point source discharge permits under the Clean Water Act. The question before the Court is whether the rule resolves all issues in the case or are there still active issues for the Court to decide?
Oregon and industry petitioners argue that issues do remain and urge the Court to reverse the Ninth Circuit decision. The Solicitor General says the rule makes it unnecessary for the Court to decide the case but that the Court should nonetheless remove the Ninth Circuit decision as precedent by dismissing the case entirely. The common denominator is the need to remove the Ninth Circuit precedent with or without a full reversal.
Yet, even if the Supreme Court wipes the Ninth Circuit slate clean, continued litigation is likely. In fact, NEDC has already filed a lawsuit in the Ninth Circuit challenging the new EPA rule after declaring to the Supreme Court its intentions to continue litigating on this issue.
It is clear that forest owners, Oregon and the Administration all recognize and agree that EPA had the right policy before the litigation began and that more litigation will not improve water quality. The most decisive way to break the litigation cycle and uphold EPA’s policy once and for all is through legislation confirming that forest roads are nonpoint sources. With the help of Congress we can uphold EPA’s 37-year record of success working through state Best Management Practices to help forestry continue its valuable contributions to clean water, fish and wildlife habitat, and outdoor recreation.