The U.S. Supreme Court issued its final orders of the year last week with no action on the forest roads case, Decker v. Northwest Environmental Defense Center (NEDC), which the Court heard December 3. What happens next? Well, one would hope that after 875 pages of briefing, the Court would decide some or all of the issues presented in the case. But the action of the U.S. Environmental Protection Agency (EPA) signing the final rule the Friday before the argument made a comprehensive decision on the merits a remote possibility.
The new rule clarified that logging is not part of the industrial activities regulated under Phase 1 of the stormwater program. 77 Fed. Reg. 72970 (December 7, 2012). While we can all support this resolution of one of the troubling rulings in the Ninth Circuit’s decision, it provides no comfort to forest owners because it leaves in place the Ninth Circuit’s ruling that forest roads are point sources. By so doing, EPA retains the legal authority to impose the federal stormwater Phase 2 program on forest roads. This led to the statements by EPA in the preamble to the rule that it would continue its evaluation of forest roads with an eye on “regulating” some undefined subset as point sources but without permits under the stormwater Phase 2 program, section 402(p)(6) of the Clean Water Act. EPA’s action essentially eliminates the possibility of legal certainty for forest landowners any time soon. Here’s why.
Mr. Fisher, counsel for NEDC, argued that the Supreme Court should dismiss the case as “improvidently granted.” This would erase all Supreme Court involvement and restore the Ninth Circuit’s opinion. The case itself would return to the U.S. District Court for the District of Oregon, which might then wrangle with the impact of the new rule on implementation of the Ninth Circuit’s opinion.
Of course, the Supreme Court has other options. It could “vacate”—eliminate—the Ninth Circuit’s opinion. The key here would be the reasons the Court gives for is action. If it vacates as “moot,” i.e. concludes that the new rule actually resolves each and every issue in the case, then the Ninth Circuit decision will exist no more. The Court could also vacate with “instructions” where it specifies to the Ninth Circuit how to proceed. For example, it could tell the Ninth Circuit that it should consider whether the case is moot in light of the new rules. But the Ninth Circuit might think that there is room for continued litigation over the liability of the parties for not having permits prior to January 7, 2013, the effective date of the new regulation, and, therefore, all of its rulings should still stand. Finally, the Court could issue rulings on some issues and then vacate with instructions to the Ninth Circuit.
The key point here is that there are so many options before the Supreme Court that it is difficult to predict an outcome other than it will be unlikely to bring an end to the uncertainty even if the Court chooses to impose some order.
The Supreme Court will likely leave the new EPA regulation untouched. (The same might not be said for the Ninth Circuit if given the opportunity.) Generally speaking, a litigant would challenge a new Clean Water Act program-level regulation in a federal circuit court of appeals. However, this is one of the issues in the NEDC case—which agency actions are subject to this requirement. If the litigant must proceed in a U.S. district court, they could file a standard judicial review lawsuit against EPA or they could file an enforcement citizen suit against whoever owns or is using a logging road and then challenge the regulation when the defendant uses it as a defense. There is no clear path here because this raises the question of what exactly is a logging road.
Mr. Fisher suggested that a logging road could provide access to a sawmill. Since the EPA terminology is “immediate access road,” this would presumably have to be continuous, raising the specter that I-5 or I-90, or eventually I-95 or U.S. Route 61, would be considered a logging road. He also suggested that it would only require a permit when active logging occurs, which would mean that operators would only need NPDES permits for two months or less for many roads. That hardly seems efficient.
Finally, Mr. Fisher asserted that harvesting operations are “industrial” because they are mechanized and compared them to landfill operations, surface mining and construction activity. At the same time, he suggested in his brief that EPA and the states could craft general permit programs to alleviate complexity and cost. That has hardly been the case for the general permits applied to mining, landfills and construction activities. And if the existing best management practices are not good enough, as he also suggests in his brief (although without a lot of supporting data), how could a general permit not impose far more stringent measures?
So at the end of the day, EPA has removed the mandatory NPDES permit requirement for point source stormwater discharges from logging and associated access roads and at the same time orchestrated a situation where the Supreme Court may elect not to issue a ruling on the Silvicultural Rule itself. This leaves the status of forest roads in limbo, the validity of the new regulation under attack and EPA on a path to create a whole new unprecedented regulatory program which will be subject to yet more litigation. Working forests and their owners could not be further from attaining certainty in management of their lands, which is why we need Congress to act.