A last-minute rule change on logging-road pollution may have undercut a case from the Northwest just as it was argued Monday before the U.S. Supreme Court.
On Friday afternoon the U.S. Environmental Protection Agency issued a new rule trying to clarify that the runoff from logging roads should not be considered industrial pollution. That caught Supreme Court justices off guard.
The Friday surprise recast Monday’s oral arguments as a debate over whether the case is now moot. Chris Winter, with the Crag Law Center, helped file the original case. He said the Justices now face a complicated set of options. He ticked them off:
“In layman’s terms the court was saying what should we do with this case now? Should we send it back to the 9th circuit? If we do so in what way?”
The Pacific Coast Federation of Fishermen’s Associations was among several Northwest groups to weigh in with a briefs in this case.
“Sediment kills salmon in a number of ways. It smothers their eggs, it changes the hydrology of the interface between subsurface and surface water,” said the group’s Glen Spain. “For juvenile salmon coming in, it can choke them, literally, strangle them.”
The timber industry contends that there is a long history of regulating forest road runoff at the state level. The case before the Supreme Court could change that, making forest road runoff from culverts and ditches a type of pollution that is regulated at the federal level. That would give citizens the right to file lawsuits against these companies to enforce the Clean Water Act, which isn’t the case right now.
Chip Murray with the National Alliance of Forest Owners said that would be problematic.
“So all of a sudden we throw into that mix a federal requirement that hasn’t been there before. It makes private lands as vulnerable to litigation, injunctions and shutdowns just as public lands have been,” he said.
The more immediate complication in the case is before the U.S. Supreme Court — the result of the EPA’s formal rule adoption last week.
Chief Justice John Roberts summed up the dilemma like this, according to a transcript of Monday’s proceedings:
“It’s an unusual situation for us to rule in a case where the issue has ongoing significance and that’s taken away. And what we would be doing is, when there is a new rule, we would be considering quite a lot of difficult issues to determine what the old rule was, so that you can unravel what the Ninth Circuit has upheld.”
An attorney with the Department of Justice urged the Supreme Court to consider the case moot, given the new rule.
The other attorneys arguing the case suggested different paths. Timothy Bishop, representing the Oregon Department of Forestry and Georgia Pacific West, urged the court to make a decision in the case anyway, arguing that the simplest thing to do would be to reverse the lower court decision and decide, as his clients have argued, that the EPA has the discretion to exempt timber harvesting from industrial permitting requirements.
Attorney Jeffrey Fisher, arguing on behalf of the environmental groups that brought the case, asked the justices to dismiss the appeal as incorrectly granted, given the changed circumstances.
Winter, with the Crag Law Center, said that from his perspective, the EPA’s new interpretation clarifying the forest road exemption doesn’t matter much. The environmental groups that filed the case still view forest road runoff that flows in to streams as a violation of the Clean Water Act, and will continue to litigate the issue.