Environment | Local

Q&A: High Court Wades Into Logging's Muddy Waters

OPB | Dec. 3, 2012 4:38 p.m. | Portland

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The Supreme Court Monday heard arguments in a case that looks at the regulation of muddy water that flows off logging roads. The case was originally filed in Oregon, by an environmental group that said logging roads in state forests were violating the Clean Water Act.

EarthFix journalist Amelia Templeton has been following the case and joins me now.

Beth: So, the regulation of muddy logging roads sounds like a pretty obscure legal issue. Why are environmental groups following this case so closely?

Amelia: Well, a lot of people believe that excess sediment clogging coastal streams is one reason salmon runs have declined, and some species of salmon have ended up endangered.

And logging roads are without question a major source of fine sediment that ends up in streams, though are many other natural and human sources.

And it’s a source of pollution that’s mostly been left to state regulation. A number of people believe that Washington has been more successful in regulating muddy runoff in the forest than Oregon has. They see this case as a way to push for a stricter federal standard.

Interestingly, the Pacific Coast Federation of Fishermen’s Associations weighed in with a brief in this case. They’re a commercial fishing association.

Here’s Glenn Spain, the group’s attorney.

“Sediment kills salmon in a number of ways. It smothers their eggs, it changes the hydrology of the interface between subsurface and surface water. For juvenile salmon coming in, it can choke them, literally, strangle them.”

Beth: What does the timber industry think this case would mean?

Amelia : Well, the timber industry points out that there is a very long history of regulating forest road runoff as what’s called non-point source pollution. Historically, what that has meant is that states come up with best management practices to try limit how much sediment and runoff gets into streams. 
And the industry says this has been successful, there’s been a high rate of compliance with state rules.

But this court case would change that, and make forest road runoff from pipes and ditches a type of pollution that is regulated at the federal level, as a point source of pollution. And 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, says 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.”

Amelia: So the industry thinks opening the door to these citizen lawsuits could create on private land that we’ve seen play out on federal land, with spotted owl lawsuits.

Beth: So what were the legal arguments the Supreme Court was supposed to hear about today?

Amelia: Well, there was a dramatic last minute twist in this case, so the legal questions ended up being far more complicated than anyone had imagined.

But there were two key questions the court was supposed to be looking at. 
For a long time, the EPA has written rules that make forest roads exempt from industrial pollution permits. And so the key question the court was going to be considering was whether the EPA had the right to interpret the law that way, or whether those exemptions violated the clean water act. The second question was whether or not the environmental groups that brought this case had the right to do so in the first place.

Beth: So you say there was a dramatic twist? What actually happened in court today?

Amelia: Well, the EPA actually changed its rules, to address this very case, late in the day on Friday.

Chip Murray, the timber industry attorney, was listening in to the Oral Arguments today, and he says the Justices were clearly exasperated with this last minute rule change. It’s created a lots of complicated legal questions over wether the case is moot and what court should handle it now.

“The EPA managed to create an extraordinary legal quagmire by issuing that regulation last Friday.”

Beth : So what happens next?

Amelia: Well, the court can decide the case is moot, and essentially un-agree to hear the appeal. Or they could send it back to the 9th Circiut Court and ask them to take another look, given that the EPA has a new forest roads rule out. Or, the court could just go ahead and make a decision. But several of the justices seemed to indicate it would be difficult for them to decide the case under the circumstances.

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