This week’s hearing before the U.S. Supreme Court in Decker v. Northwest Environmental Defense Center (NEDC) was no typical day in court. The forest roads case arrived at the high court as a result of a ruling out of the U.S. Court of Appeals for the Ninth Circuit that overturned 35 years of successful regulation of forest roads by the U.S. Environmental Protection Agency (EPA). The case caught the attention of diverse stakeholders nationwide who urged the Supreme Court to reverse it.
Just days earlier and unbeknownst to the Justices, the EPA had signed a final rule in response to the Ninth Circuit. The result—a surprised Chief Justice Roberts who admonished the federal government for not informing the Court of this important development while knowing a full month ahead of time that it was likely to happen. The potential effect of the new rule took center stage at a time when the court should have focused on the merits of the case, casting a pall of legal uncertainty on the outcome. The Justices now must consider their options, which include sending the case back to the Ninth Circuit for further deliberations on the impact of the new rule, ruling on the merits of the case notwithstanding the new rule, or simply vacating the Ninth Circuit’s decision and dismissing the case without further deliberation.
So, what’s in the rule? The good news is that the rule clarifies the existing regulations by reiterating the exclusion of logging from the industrial activity definition, thereby removing forest roads from the mandatory stormwater permit requirement. The bad news is that EPA states in the rule preamble its intent to continue evaluating forest roads for possible regulation under the discretionary component of the stormwater program (known as Phase 2), a step EPA can only take by concluding that forest roads are point sources.
Perhaps the most significant impact of the new rule is that it will perpetuate litigation in the Ninth Circuit with the added twist that, since the rule applies nationwide, whatever the Ninth Circuit ultimately decides will apply nationwide as well. The NEDC attorney told the Court in very clear terms that NEDC intends to continue litigation by whatever means to require permits for forest roads, stating:“…we contend that the new rule simply violates the statute, and we have a right to bring a citizen suit for a violation of the Clean Water Act itself…I think that what we’ll do is proceed whatever way we can.”
The Justices meet this Friday to determine their next steps and may announce as early as next week what they intend to do. Regardless of what they decide, litigation over the new rule will proceed, dragging on the legal uncertainty for federal, state, county, tribal and private forest owners nationwide and wasting the time and resources of all parties involved.
If there were ever a time for Congress to step in and resolve this issue once and for all, it is now. Legislation this year clearly establishing that forest roads are not point sources would preserve EPA’s 35-year interpretation of the Clean Water Act, stop the senseless litigation, and enable EPA, states and forest owners and managers nationwide to return to building on the water quality successes they have achieved together over the past three decades.