Forest Roads Update: Opening Briefs Filed in U.S. Supreme Court, EPA Publishes Proposed Rule

One Step Closer to Review of Forest Roads Decision

The State of Oregon and the industry group of petitioners have filed their merits briefs in the forest roads case that the U.S. Supreme Court will hear this term. As readers of this blog will know, the U.S. Supreme Court consolidated two petitions for certiorari into one case because they were based on the same Ninth Circuit ruling. Since then, it's clear the petitioners have been hard at work, since both present much clearer questions to the Court. The briefs are posted below.

The industry group of petitioners states the question it presents:

Whether the Ninth Circuit should have deferred to EPA’s long-standing position that channeled runoff from forest roads does not require a permit, and erred when it mandated that EPA regulate such runoff as industrial stormwater subject to NPDES.

The State of Oregon states the questions it presents:

(1) Congress authorized citizens dissatisfied with the Environmental Protection Agency’s rules implementing the Clean Water Act’s permitting program to seek judicial review of those rules in the courts of appeal. Congress further specified that those rules could not be challenged in any civil or criminal enforcement proceeding. Did the Ninth Circuit err when it held that a citizen may bypass the exclusive method of seeking judicial review of a permitting rule, and challenge the validity of the rule in a citizen suit to enforce the Clean Water Act against regulated parties?

(2) In the Clean Water Act, Congress required permits for stormwater discharges “associated with industrial activity,” and delegated to EPA the responsibility to determine what activities qualified as “industrial” for purposes of requiring permits for those activities. EPA determined, after public comment and rulemaking, that stormwater from forest roads and other specified forestry activities is non-industrial stormwater that does not require a permit. Did the Ninth Circuit err when it held that stormwater from forest roads is industrial stormwater under the Clean Water Act and EPA’s rules, contrary to EPA’s consistent interpretation of its own rules?

The theme behind both opening merits briefs is clear: the Ninth Circuit allowed an environmental organization to make an end run around around the Clean Water Act's when the Ninth Circuit struck down EPA's longstanding Silvicultural Rule. The Clean Water Act separates the rule development process from the citizen lawsuit enforcement process, and the Ninth Circuit conflated the two processes. Consequently, the petitioners argue that the Ninth Circuit should have barred the belated challenge, or at the least have deferred to EPA's consistent interpretation of the Act and its rules.

EPA's Rulemaking Remains Related But Distinct Avenue for Relief

These briefs come just after EPA proposed revisions to its Clean Water Act rules for logging roads. The National Alliance of Forest Owners has posted an excellent summary of how these issues are related but will likely remain separate until we get a ruling from the U.S. Supreme Court.:

Will the U.S. Environmental Protection Agency’s (EPA) recently announced proposed rule regarding forest roads impact the Supreme Court’s review of the decision by the U.S. Court of Appeals for the Ninth Circuit? The simple answer is no. 

EPA has proposed to clarify its regulations defining “stormwater discharges associated with industrial activity” by revising its reference to Standard Industrial Classification (SIC) 24 to exclude logging. SIC codes were developed in the 1930’s as a uniform way to collect statistics. For reasons never explained, the Department of Labor many years ago included logging in SIC 24 with various solid wood manufacturing classifications, rather than in SIC 08 with the forestry classifications. The proposed rule does not remove the language excluding logging from the industrial activity definition which EPA put in its original 1990 stormwater regulations but which the Ninth Circuit ignored when it ruled that logging is an industrial activity. 

If this rule were to become final, logging, and “immediate access roads” referred to as logging roads, would not be subject to the mandatory NPDES permit requirement under Phase 1 of the stormwater program for discharges associated with industrial activity. However, this would not change two facts. First, under the Ninth Circuit’s ruling, logging roads would have been classified as part of an industrial activity for the past 22 years and would have required NPDES permits during this period. Second, these logging roads, as well as all other forest roads formerly defined as nonpoint sources by the Silvicultural Rule, remain point sources under the Ninth Circuit’s ruling. Finally, the Supreme Court must decide whether the plaintiffs in the case filed the lawsuit at a time and in a court authorized by the Clean Water Act. Thus, the essential issues to the case would remain active before the Supreme Court.

In the short therm, uncertainty remains for forest landowners. These developments indicate, however, that clarity lies ahead.