Lawyers on all sides of the dispute over the federal government’s role — or lack of it — in monitoring the drainage of storm water across logging roads have offered the Supreme Court a range of ideas on what to do with the case, now that it has been argued and new government rules are in place. There was agreement on only one thing: the Court might consider, perhaps as a backup choice, sending the case back to the Ninth Circuit Court for a new review. That is the simplest option among an array of choices laid out in a new round of briefs in two consolidated cases argued seven weeks ago.
The cases of Decker v. Northwest Environmental Defense Center (11-338) and Georgia-Pacific West v. Northwest Environmental Defense Center left the Supreme Court visibly frustrated — and perhaps a bit angry — because the U.S. Environmental Protection Agency had put out a new rule on the drainage issue just before the oral argument December 3, and that rule came to the Court’s attention only when the Justices were ready to take their seats for that hearing. After cooling off a bit, the Court on January 8 told all of the lawyers to submit new written arguments on the impact of the new EPA pronouncement. (The case is being handled by eight Justices; Justice Stephen G. Breyer is recused.)
The federal government is not a direct party in the case; in fact, it had urged the Court, when asked for its view, not to take on this dispute in the first place. But it is involved in the case as an amicus, and its chief lawyer, Solicitor General Donald B. Verrilli, Jr., filed the only new brief to urge the Court to declare these cases moot because of the new EPA rule. In the other new briefs, the state of Oregon, timber and paper industry members, and an environmental advocacy group — who are parties in the case — all argued that the cases are not moot, and that the Court should go on to decide at least some of the issues at stake.
As granted last June 25, the combined cases raise two issues: whether the federal Clean Water Act requires timber companies and forest operators to get a permit before they discharge into rivers or streams the stormwater that runs off of logging roads, and whether a private individual or organization has a legal right to pursue a “citizen suit” to sue to get an interpretation of what the Act requires, instead of testing a specific order issued by the EPA. Factually, the case involves drainages off of logging roads in the Tillamook State Forest in Oregon.
The EPA has long taken the view that a permit is not needed for such discharges. But it adopted a new rule on November 30 of last year (the Friday before the Monday argument at the Court), and that rule has now gone into effect, applying only to future discharges. The new version, which the agency insisted did not represent a new interpretation but rather only a clarification, specified that such runoff does not involve the kind of “industrial activity” for which the Clean Water Act mandates a permit.
For the EPA, the Solicitor General’s new brief said the rule makes the two cases moot. Verrilli conceded that the rule does leave open two “potential areas of continuing disagreement.” First, he said, is whether the discharges that occurred before the new rule took effect were legal, since the new rule is not retroactive. And, second, whether even future discharges would require a permit when the Act is properly understood. The second point puts in issue, the Solicitor General noted, the validity of the EPA’s view. But those two issues, the government brief argued, would be better resolved in a new legal challenge to the EPA rule, not through this citizen lawsuit, especially since EPA is not a party in this lawsuit.
Thus, Verrilli argued, the Court should vacate the Ninth Circuit’s ruling requiring permits, and send the case back with orders to dismiss it as moot. But if the Court were to conclude that the case is not legally dead at this point, or the Justices prefer to bypass that issue, then the case should be returned to the Circuit Court to reexamine it in light of the new rule.
The state of Oregon’s new brief argued that the case is not moot about whether the environmental group had a right to file its “citizen suit” to demand EPA permits. And the case is not moot on what the Clean Water Act itself does or does not require regarding runoff from logging roads. The case is moot, the state suggested, only so far as it represented an interpretation of EPA’s prior rule as to what is “industrial activity” under the Act. But, it added, if the Court finds the case to be moot, the next step should be to wipe out the Circuit Court opinion.
The timber and paper industry challengers to a permit requirement argued that the case is not moot because those involved in this dispute have a legal right to know whether the courts should defer to the EPA on when a permit is required for runoff from logging roads. Whether the Act requires such a permit is a question about the Act’s scope, not about EPA’s view of it, the new industry brief contended. The Court should rule, this filing argued, that EPA was right in concluding that such runoffs are not a part of the kind of industrial activity for which a discharge permit is required. “There are no legal or practical impediments to reaching the merits,” that brief asserted. But that document, too, suggested that, if the Court does not decide the merits, it should order the Circuit Court to reexamine the case in light of the new EPA rule, and, in the process, vacate the Circuit Court’s ruling that is at issue.
The Northwest Environmental Defense Center, a group set up by faculty and students at the Lewis & Clark Law School in Portland, Oregon, that filed the lawsuit demanding permits for the logging road runoffs, argued in its new brief that the case is not moot. But it urged the Court, as the recommended first option, that it allow lower courts to be the first to review the Center’s continuing argument that the Act itself requires permits for such drainages. As to the future, the brief said, the Center is seeking a ruling that “the plain text of the Act requires permits for the discharges.” If the Court agrees that the Center can pursue that “forward-looking” claim, the case should send the case back to the Circuit Court “and go no further.” But, even if that relief is deemed not available, the Center brief contended that it has a claim to pursue “backward-looking relief” — either civil penalties or an order to take steps to protect the streams from past discharges — on the theory that “citizen suits” can be pursued for that kind of relief.
The Court is not expected to order new oral arguments on the case, but to proceed now to decide what it should do next.
[Disclosure: The law firm of Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, is among the counsel to the NEDC in these cases. The author of this post operates independently of the law firm.]
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