By Glen C. Hansen

An environmental group sued various timber companies along with the Oregon State Forester and the individual members of the Oregon Board of Forestry for violations of Clean Water Act (“CWA”) on the grounds they did not obtain permits from the U. S. Environmental Protection Agency (“EPA”) for stormwater runoff that flows from logging roads into systems of ditches, culverts, and channels, which is eventually discharged into forest streams and rivers. The Ninth Circuit Court of Appeals concluded that such runoff from logging roads is a point source discharge and thus, an NPDES permit is required. That ruling reversed a 30-year practice of exempting stormwater from forest roads from NPDES permitting (i.e., the “Silvicultural Rule”).

On Monday, December 3, 2012, the U.S. Supreme Court heard oral argument after granting certiorari in the case.  However, on Friday, November 30, 2012, three days before oral argument, the Court was informed that the EPA had just concluded a new rulemaking (in an unusually short timeframe), which amended and reaffirmed the existing Silvicultural Rule, and which specifically disapproved the Ninth Circuit’s decision in this case. That new rulemaking gave the State of Oregon what Chief Justice Roberts described as “almost all the relief they’re looking for” in defending the lawsuit. Chief Justice Roberts chided the government attorneys for not informing the Court in early November that a new rule was about to be issued, which could have delayed the Court’s oral argument, and possibly allowed supplemental briefing. The Deputy Solicitor General conceded that issuing the new rule the Friday before Monday’s oral argument was “suboptimal.” Counsel for the respondent environmental group stated to the Court that the new EPA rule “simply violates the statute,” is “not as clear as you might think,” “doesn’t moot the case,” and that EPA “is leaving open our argument.” Therefore the group is likely to bring an entirely new citizen suit action against the EPA to challenge the new rule. 

During oral argument, the Justices and attorneys struggled with what to do with the case procedurally.   For example, Justice Kennedy’s questioned whether the Court should “vacate for the court of appeals to consider in the first instance the extent to which this regulation may bear on its opinion.” The Justices will now have to consider the following issues:

Should the Court consider the Ninth Circuit’s decision on the merits anyway because that legal interpretation could preempt years of additional litigation regarding the retrospective relief sought by the environmental group in the lawsuit, including attorneys’ fees, penalties for alleged past violations, and remediation for alleged past environmental harm;

Should the Court overturn the Ninth Circuit’s decision and find for the State of Oregon on the merits because, according to counsel for the State of Oregon, that will “preclude a large part of the basis for the challenge to the new rule” and “eliminate one of the arguments that the plaintiffs will make in a challenge to the new rule”;

Should the Court merely find the case moot, as Deputy Solicitor General suggested, because of the EPA’s view that the “new rule was not intended to change the meaning of the preexisting definition”;

Should the Court dismiss the case as improvidently granted, as counsel for the environmental group recommended, which would then let the parties return to the Ninth Circuit to address whether any remedies can be given to the environmental group.

Thus, in light of the unique and sudden developments in the case, there is great uncertainty over what the Court will now do with the litigation, as well as whether there will be any further litigation over the retrospective relief sought by the plaintiff in that case. The only thing that appears somewhat certain after oral argument is that EPA’s new rule will likely be challenged by the environmental group. Decker v. Northwest Environmental Defense Center, 183 L.Ed.2d 673, 2012 U.S. LEXIS 4793 (case no. 11-338), on cert. review of Northwest Environmental Defense Center v. Brown (9th Cir. 2011) 640 F.3d 1063.

Glen Hansen is senior counsel at Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.