As expected, the new U.S. Environmental Protection Agency (EPA) rule clarifying that logging is not an industrial activity under the Clean Water Act (CWA) has precipitated a legal quagmire. Last Friday the Northwest Environmental Defense Center (NEDC) filed a new lawsuit in the U.S. Court of Appeals for the Ninth Circuit, challenging the EPA rule. This comes just ahead of the Supreme Court’s order today inviting further briefing on the impact of the EPA’s rule on Decker v. NEDC currently pending before that Court.
Since the EPA rule applies nationwide, the new round of litigation initiated by NEDC will have nationwide implications. In other words, whatever the Ninth Circuit ultimately decides will apply not only on the West Coast, but also on the East Coast and every state in between. This is precisely why we urged EPA not to finalize a rule ahead of the Supreme Court proceedings. The result could be another round of costly litigation for forest owners.
Much will depend on the Supreme Court’s response to the supplemental briefing from parties in NEDC v. Brown. Those briefs are due to the Court by January 22. It appears the Court has acknowledged that a more thorough review of the impact of EPA’s rule on the case is warranted – a positive development following the irritation expressed by the Court in oral argument December 3. The Court’s treatment of the rule is fundamental to the outcome of the case.
Still, it is clear that regardless of what the Supreme Court decides, the litigators on the other side will not stop. NAFO will continue to work with its partners to do what is necessary to defend EPA’s longstanding treatment of forest roads as nonpoint sources best regulated through state-derived Best Management Practices. This will now require additional work before the Supreme Court, the Ninth Circuit and Congress. We will also continue to work with the EPA directly. Our work will not be done until we have established once and for all that forest roads are nonpoint sources and have preserved the policy that has been a CWA success for the past 35 years.