On December 3, the U.S. Supreme Court will consider who is best suited to set national environmental policy – the experienced scientists and regulators at the Environmental Protection Agency or activist trial lawyers.
In Pacific West v. Northwest Environmental Defense Center (also known as Decker v. NEDC) the justices will review a 2011 Ninth Circuit Court of Appeals decision that overturned 35 years of EPA Clean Water Act regulation of the logging industry, the source of 2.5 million American jobs. The high court will decide between two theories of regulation: (1) the law tells states (as the EPA insists) to regulate runoff from logging roads via “Best Management Practices” (which are flexible, federally supervised standards tailored to local conditions, that activists cannot challenge in court); or (2) the law requires (as the Ninth Circuit says) “point source” permits usually reserved for factories, mines and chemical plants, and subject to court challenges.
This arcane technical dispute has real-world consequences.
Under the Ninth Circuit ruling, a permit could be demanded for every drain and ditch that directs water from a logging road to a fish-bearing stream. The U.S. Forest Service estimates that getting all its roads fully certified could take as much as a decade. The state of Washington has said that, on average, it will need one permit per mile for all 55,000 miles of its eligible roads, with, by some estimates, the cost of processing a single permit running $2,800. And, unlike BMPs, permits will be subject to activists’ lawsuits. Senator Ron Wyden (D-Oregon) has warned that upholding the Ninth Circuit decision will “bury private, state and tribal forest lands in a wave of litigation.” More like a tsunami.
Meanwhile, 31 state attorneys-general noted in their Supreme Court brief that, “Forestry practices in the United States are now conducted under the most comprehensive program of BMPs of any land use activity in the nation.” The former dean of the Yale School of Forestry and Environmental Studies, John Gordon, worries that, “Injecting permit requirements into this [BMP] process will only make the ongoing upgrade of our [environmental protection] methods slower and more expensive, diverting resources from reducing sediment to the legal machinery of permit review and litigation.” “In this case, environmental activists are not on the side of the environment,” he concluded. The EPA agrees; regulators have insisted for decades that permitting was not designed for—and does not work for—forest road runoff even as state forest road BMPs are widely acknowledged to have proven effective and efficient.
At SCOTUSblog, John Elwood provides a detailed preview of the upcoming argument. Among other things, he notes:
The case is of central importance to the logging industry and businesses that rely on it. If the Ninth Circuit’s decision is upheld (and, of course, the regulations exempting logging roads are not finalized soon), in the near term, it would mean a significant additional regulatory burden on logging operations because of the expense in obtaining permits, the ability of environmental groups to delay the permitting process, and the “mind boggling” number of logging roads nationally – there are an estimated 15,000 miles of logging roads in the State of Maine alone and hundreds of thousands more in the Northwestern United States. Depending on the Court’s rationale, a variety of work-arounds (from revised EPA regulations to blanket permits) could render the impact manageable in the longer term, but there is no question that affirmance would be disruptive to the logging industry.
When the case was first granted, many believed that the case reflected overreaching by the Ninth Circuit and concluded it was headed towards certain and overwhelming reversal. The Northwest Environmental Defense Center (“NEDC”) – the plaintiff below, but the respondent at the Court – must “run the table” and win every issue presented to prevail. Still, the case’s fate is far from clear.