In line with its position of more than three decades, the EPA recently issued a rule confirming logging roads are not subject to National Pollutant Discharge Elimination System (NPDES) permitting requirements. The revision, handed down on November 30, was intended to clarify the intent of the EPA to exempt logging roads from regulation as industrial facilities. With the exception of rock crushing, gravel washing, log sorting and log storage activities, the EPA maintains stormwater discharges from silvicultural activities - including logging roads - do not require a NPDES permit.
Though the EPA intended its new rule to answer the question of permitting requirements once and for all, it has likely done more to extend the controversy surrounding the case. At first glance, the EPA's announcement appears to benefit the logging industry. However, the rule is expected to prolong the legal battle over runoff from logging roads.
On December 3 (the first business day after the EPA’s ruling), the Supreme Court heard arguments on the same issue, an appeal of the Ninth Circuit Court’s decision that the use of commercial logging roads is an industrial activity for which a permit is required under the Clean Water Act. In light of the new EPA rule, the Supreme Court instead focused on whether any portion of the case was left for it to decide.
It is a highly unusual situation for the Supreme Court to decide a case in light of a rule that changes the overall legal landscape. The Court was originally expected to decide the case by June of 2013, but it is now uncertain whether it will either consider the new EPA rule in its decision or decide the case at all. Three potential scenarios for the Supreme Court’s decision are possible.
Decide the Case on Its Merits
Environmental groups are expected to challenge the new EPA rule as a violation of the Clean Water Act. As such, industry advocacy groups have taken the position the Supreme Court should decide the case on its merits. Though this approach seems practical, the Court typically leaves the task of testing the merits of a new law to the lower courts.
In the event the Supreme Court does not decide the merits of the case, industry advocacy groups are expected to push for the passage of the Silvicultural Regulatory Consistency Act. This bill is intended to amend the Clean Water Act to consider silvicultural activities as non-point sources of pollution. States could then continue to regulate their logging roads under the Best Management Practices previously set forth. (Read more about these bills: Congress and Supreme Court Address Forest Road Regulations.)
Dismiss the Case
Attorneys for the environmental group that filed the original case suggested the Supreme Court allow the lower courts to sort out the questions of the new rule and then revisit the issue if necessary. They advised the Supreme Court to dismiss the case as "improvidently granted," which would leave the ruling set forth by Ninth Circuit Court in place. It is unlikely the Supreme Court will take this stance.
Render the Case Moot
The Federal Government has argued the Supreme Court should declare the lawsuit moot as the new EPA rule has removed legal significance from the case. At the time of the initial hearing, the Supreme Court did not ask the attorneys to file further briefs on whether the case is moot.
It could take several months for the Supreme Court to issue a full opinion either on the merits of the case itself or the issue of mootness. On the other hand, a decision to affirm the decision of the Ninth Circuit Court or vacate the decision back to that court could come at any time. If the Supreme Court does in fact refuse to decide whether logging roads are subject to the permitting requirements set forth by the Clean Water Act, the issue is likely to sit in the federal court system for years.
Suz-Anne Kinney
Forest2Market: July 14, 2023
