Today, the State of Oregon and the industry defendants led by Georgia Pacific West filed their opening briefs in the Supreme Court forest roads case styled Decker v. Northwest Environmental Defense Center (NEDC). The High Court is reviewing the decision by the U.S. Court of Appeals for the Ninth Circuit that overturned the U.S. Environmental Protection Agency’s 35-years of successful regulation of forest roads as nonpoint sources under the Clean Water Act (CWA) and holding that logging road operators must obtain point source discharge permits because logging is an “industrial activity.”
The core arguments in the two briefs filed today on why the Supreme Court should reverse the Ninth Circuit ruling come down to two basic points: First, the CWA does not allow review of EPA permit-related regulations so many years following their adoption; challenges must be filed within 120 days. Second, the Ninth Circuit ignored the long-standing principles established by the Supreme Court requiring lower courts to accept reasonable interpretations by agencies of their governing statutes and regulations.
Amicus briefs, including one that will be filed by NAFO, in support of the petitioners are due next Tuesday, September 4. We expect the Solicitor General (SG) to file his brief on behalf of the United States the same day. Those following this case closely may recall that in late May EPA issued a Notice of Intent for a rulemaking to address the “industrial activity” ruling by the Ninth Circuit and an overall evaluation of water quality impacts of forest roads. The next day, the SG followed up on this Notice and recommended that the High Court not review the case because this was an issue best to be resolved by Congress and EPA. EPA today published its proposed rule on industrial activity and in footnote 1 they carefully preserved the definition of forest roads as nonpoint sources. It will be interesting to read how the SG uses this proposal in his brief next week.