FedSoc Blog

Breyer Recuses Himself in Major EPA Case


by Publius
Posted December 03, 2012, 8:44 AM

According to Reuters:

When the U.S. Supreme Court hears a pair of cases challenging the Environmental Protection Agency today, it will do so without Justice Stephen Breyer, who has recused himself.

Breyer is a noted expert in administrative law and has tended to defer to the position of federal agencies in the past. By recusing himself, he may have deprived the EPA of an ally in two too-close-to-call challenges, which could determine how the agency handles certain logging permits.

Breyer's absence could therefore give an advantage to environmentalists, who are challenging the EPA in the two cases.

Under long-standing EPA policy, logging companies are exempt from securing permits for stormwater runoff. In the two lawsuits, originally filed in 2006, an environmental group says runoff is a major source of urban pollution and that the Clean Water Act in fact requires permits. The Oregon state agencies and timber companies who are the defendants in the lawsuits argue that the act does not mandate permits.

The district court ruled against the Northwest Environmental Defense Center, but the 9th Circuit Court of Appeals reversed in a unanimous decision in 2011. The defendants, including the Oregon State Forester, the Oregon Board of Forestry and a group of timber companies, appealed to the Supreme Court.

When the Supreme Court announced in June that it had granted certiorari, it noted that Breyer would be recused, though it did not disclose the reason, as is typical in recusal cases.

In the past, Breyer has disqualified himself in cases in which his brother, Judge Charles Breyer, a senior district judge for the Northern District of California, had played a role. Judge Breyer sat by designation on the 9th Circuit in both Georgia Pacific-West v. Northwest Environmental Defense Center and Decker v. Northwest Environmental Defense Center.

Before he joined the Supreme Court in 1994, Justice Breyer was a noted expert in administrative law and wrote two influential books on deregulation. His absence in the environmental cases could be considered a loss for the EPA and logging companies, experts said.

"Justice Breyer tends to be very sympathetic on the kinds of issues this case presents -- the Environmental Protection Agency's ability to interpret statutory language ... and t o address the problem at hand," said Richard Lazarus, who teaches environmental law and Supreme Court advocacy at Harvard Law School. "His is a vote I would think would have been inclined to favor the government's position here." . . .

In the Washington Times, David Hampton, who owns a logging company, says that millions of jobs are at stake in the case:

. . . Logging is an almost invisible activity for most Americans. For small forest owners such as my family, for our co-petitioners and for the 2.5 million Americans whose jobs directly depend on it, logging is our lives. My family’s firm is a significant exporter of wood products, while logging itself is the economic driver for thousands of communities nationwide. In August 2010, a three-judge panel for the 9th U.S. Circuit Court of Appealstook direct aim at this industry and all who work in it.

The panel ruled that 35 years of Clean Water Act regulation had been wrong. Since 1976, the Environmental Protection Agency has said that logging roads and forestry come under the sections of the law that govern agriculture, meaning states regulate them with federal oversight using BMPs. John Gordon, former dean of the Yale School of Forestry and Environmental Studies, has written that this system has produced “vast improvements in all aspects of forest engineering as well as research on fish and wildlife habitat and protection of riverbanks and the areas around them.” Using what he calls the “continuous process improvement” of BMPs, “regulators and public and private forest managers have incorporated these findings into their standards.”

The 9th Circuit panel threw out all this history. It found that every drainage ditch and culvert on every forest road used by a logger could qualify as a “point source” under the Clean Water Act. Effectively, each pipe and channel directing water sooner or later to a fish-bearing stream must receive a federal permit to operate. . . .

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