Supreme Court Preview: The 2012/2013 Docket: Georgia-Pacific West v. Northwest Environmental Defense Center

Georgia-Pacific West v. Northwest Environmental Defense Center (NEDC) involves a challenge to a Ninth Circuit ruling[1] that runoff from logging roads conveyed in ditches and culverts requires a stormwater permit. If upheld, the decision would require landowners, logging companies, and state and federal agencies to develop and obtain stormwater permits to manage stormwater discharges from vast expanses of public and private lands. Concerned about the cost, political backlash, and administrative burden of that result, EPA has attempted to blunt the impact of the Ninth Circuit’s decision by publishing a proposed rule clarifying that logging road runoff does not require a stormwater discharge permit.[2] Comments on the proposed rule closed on October 4 and are now under review. Meanwhile, the respondent’s brief to the Supreme Court is due on October 16, 2012 and oral argument is set for December 3, 2012.

Background

The Clean Water Act (CWA) prohibits the discharge of a “pollutant” into waters of the United States from a “point source” without a permit, such as a National Pollutant Discharge Elimination System (NPDES) permit.[3] Section 402(p) of the CWA includes a phased approach for addressing stormwater discharges. Phase I covers enumerated sources of stormwater pollution, including stormwater “associated with industrial activity”[4]—a term that the CWA does not define. Under EPA’s current regulations, that term includes discharges from “immediate access roads … used or traveled by carriers of raw materials, manufactured products, waste material, or by-products used or created by the facility.”[5] The Phase II stormwater regulations apply to any additional stormwater discharges that EPA designates to protect water quality. For such designated discharges, EPA need not require NPDES permits, but must “establish a comprehensive program” that “may include performance standards, guidelines, guidance, and management practices and treatment requirements, as appropriate.”[6]

EPA has excluded forest road runoff from the NPDES program almost ever since Congress passed the CWA. After refining the Silvicultural Rule in response to court action, the Silvicultural Rule changed little for approximately thirty-five years before the Ninth Circuit’s decision. The current language of the Silvicultural Rule limits “silvicultural point sources” to “rock crushing, gravel washing, log sorting, or log storage facilities which are operated in connection with silvicultural activities and from which pollutants are discharged into waters of the United States.”[7] Falling outside the definition are “non-point source silvicultural activities such as nursery operations, site preparation, reforestation and subsequent cultural treatment, thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage, or road construction and maintenance from which there is natural runoff.”[8]

The NEDC Decision

As discussed in previous editions of this newsletter, see Ninth Circuit Reissues Opinion Requiring NPDES Permits for Stormwater Discharges from Logging Roads, NEDC involved two state-owned logging roads that timber companies use and maintain for logging activities. NEDC brought a CWA citizen suit alleging that sediment discharges in stormwater from these roads require NPDES permits. The Ninth Circuit reversed the district court’s dismissal of that lawsuit and issued three key holdings. First, it held that the Silvicultural Rule does not and cannot, consistent with the CWA, exempt runoff that is collected from logging roads and discharged from ditches or culverts to jurisdictional waters. Without expressly invalidating the Silvicultural Rule, the Ninth Circuit interpreted the Rule in a manner that effectively negated its utility as a safe harbor for parties like the defendants. Second, the Ninth Circuit held that discharges from logging roads fall within the scope of the Phase I regulations as stormwater discharges that are “associated with industrial activity” under CWA § 402(p) and EPA’s regulations, such that an NPDES permit is necessary. Finally, the Ninth Circuit held that it properly exercised jurisdiction over the case, determining that the plaintiff did not run afoul of the time limitations for challenging EPA regulations since the court merely addressed EPA’s interpretation of its rule that was first raised in an amicus brief before the court.

Regulatory, Congressional, and Litigation Efforts to Redress the Ninth Circuit’s Decision

In the wake of the Ninth Circuit’s decision, the defendants, EPA, various stakeholders, and Congress embarked on an aggressive effort to reverse or override the Ninth Circuit’s decision. The status of these efforts follows.

Congress Wades In, Wades Out

Immediately after the Ninth Circuit’s decision in NEDC, a bipartisan group of legislators in the Senate and the House introduced bills to codify the Silvicultural Rule as an amendment to the CWA.[9] See Opposition Mounts To Ninth Circuit Ruling Requiring NPDES Permit For Stormwater Runoff From Forest Roads. The bills did not pass, but Congress did issue a moratorium on implementation of NEDC until September 30, 2012.[10] The moratorium has now expired. New bills are currently moving through committees in the House (H.R. 2541) and Senate (S. 1369) and may (or may not) be considered in the lame duck session following the November election.

Meanwhile, at EPA …

On May 23, 2012, EPA issued a notice stating its intent to “expeditiously” propose revisions to its Phase I stormwater regulations “to specify that stormwater discharges from logging roads are not stormwater discharges ‘associated with industrial activity.’”[11] Although EPA no doubt intended this notice to influence the Court’s decision regarding whether to accept review of NEDC, a point that it made clear in its amicus brief before the Court,[12] EPA nevertheless published its proposed rule[13] despite the Supreme Court’s decision to grant review.

EPA’s proposed rule would clarify that stormwater discharges from logging roads do not fall within the Phase I stormwater regulations. While the Ninth Circuit determined that stormwater discharges from logging roads are “associated with industrial activity” under these regulations, the rule would specify that the only facilities under the SIC “logging” category (SIC 2411) that are “industrial” are “rock crushing, gravel washing, log sorting, and log storage.”[14] According to EPA, the “immediate access roads” definition that the Ninth Circuit focused on does “not include public access roads that are state, county, or federal roads such as highways or Bureau of Land Management roads which happen to be used by the facility.”[15] Logging roads differ from “immediate access roads,” according to the preamble to the rule, because logging roads have “multiple uses, including recreation and general transportation, and commonly extend over long distances.”[16] EPA’s intent is to implement “the NPDES program requirements … with regard to ‘immediate access roads’ in the same way as they were implemented prior to the decision by the Ninth Circuit.”[17]

Under the proposed rule, EPA would clarify, “contrary to the Ninth Circuit’s decision in NEDC,” that discharges of stormwater from silvicultural facilities other than rock crushing, gravel washing, log sorting, and log storage facilities “do not require an NPDES permit,”[18] regardless of whether “they are point source discharges,” an issue that EPA believes the Supreme Court will review.[19] EPA’s preamble to the proposed rule also states that, because stormwater discharges from logging roads fall within the Phase II stormwater regulations, EPA will use its authority to consider appropriate regulatory approaches to these discharges as it “continues to review available information on the water-quality impacts of stormwater discharges from forest roads [including logging roads], as well as existing practices to control those discharges and is considering a range of options to address such discharges, which could include designating a subset of stormwater discharges from forest roads for regulation under the Agency’s section 402(p) rulemaking authority.”[20] EPA also asserts that it continues to evaluate comments on its May 2012 notice of proposed rulemaking “as it considers possible next steps.”[21] EPA is not intending to revise its Silvicultural rule, owing to its presumption that the proposed rule is sufficient to clarify that stormwater discharges from logging roads do not require NPDES permits.

Depending on what the Supreme Court decides and what happens in the election, the proposed rule may or may not ever get published. If it does, it is almost certain to be challenged.

Merits Briefing Before the Supreme Court

Immediately before EPA published its proposed rule, the petitioners filed their merits briefs before the Supreme Court. The petitioners argue that: (1) the Ninth Circuit failed to defer properly to EPA’s determination that NPDES permits were not required; and (2) the lower courts did not have jurisdiction over the lawsuit, because the suit should have been viewed as a direct challenge to the Silvicultural Rule and the Phase I stormwater rule in an enforcement proceeding, the time for which is long passed under the CWA’s 120 day statute of limitations.

In support of the first point, the petitioners assert that EPA’s interpretation in the Silvicultural Rule that runoff from logging roads is not a “point source” is entitled to deference given the ambiguity in the statute. In support of this argument, the petitioners point out that the CWA expressly excludes “agricultural” stormwater discharges from the definition of “point source,” with could plausibly envelop silviculture (particularly given that this amendment occurred years after the Silvicultural Rule was in place), but at the very least undermines “the Ninth Circuit’s reasoning that any ditch is a point source” under the CWA.[22]

Moreover, even if logging road runoff is a point source, according to the petitioners, it is not “associated with industrial activity,” as EPA has interpreted that phrase in its Phase I regulations (an interpretation that is deserving of deference), and is therefore excluded from the CWA’s NPDES program. The petitioners argue that logging does not constitute a true “facility,” that the Phase I rule explicitly carved out discharges from facilities or activities covered by Silvicultural Rule, and that forest roads are not “immediate access roads,” as the Ninth Circuit concluded, because they are neither “within” nor “at facilities.”[23] Indeed, according to the petitioners, forest roads are “used for a wide range of activities,” such as timber operations, recreation, fire protection, and transportation.[24] Additionally, the petitioners point out the costs and uncertainty that would result from upholding the Ninth Circuit decision, both to stakeholders and regulators, and the invasion of traditional state authority over nonpoint source discharges are factors that should be taken into account when resolving whether EPA’s interpretation of the CWA and its regulations is appropriate.

In support of the petitioners’ second point, the petitioners take issue with the United States’ contention, in its amicus brief submitted before the Supreme Court accepted review, that the Ninth Circuit merely interpreted the regulations differently from EPA. According to the petitioners, the Ninth Circuit instead invalidated pivotal aspects of EPA’s long-standing rules after reviewing EPA’s brief before the Ninth Circuit that did nothing more than parrot EPA’s long-standing interpretations of its rules. The petitioners also point out that affirming the lower courts’ jurisdiction over the case would “[a]llow[] the validity of EPA regulations to be determined in citizen suits years or decades after a rule takes effect [and] would inundate district courts with belated challenges to established regulations,” where EPA is not a party to the lawsuit but is subject to the result.[25] Moreover, allowing citizen suit challenges like this case, according to the petitioners, would allow for a patchwork of permitting requirements and water quality standards within each federal district and circuit, even when states within those jurisdictions are attempting to follow the national CWA and federal regulations.

The United States’ Amicus Brief

The United States filed an amicus brief in support of the petitioners on the same day that the proposed rule was published in the Federal Register. The United States’ amicus brief largely tracks the petitioners’ first argument: that the Ninth Circuit failed to defer to EPA’s reasonable interpretation of the CWA in the Silvicultural Rule and EPA’s interpretation of the scope of its Phase I regulations.

Consistent with the tenor and purpose of EPA’s proposed rule, however, the United States’ brief attempts to provide a short cut for the Court by focusing on the import of EPA’s Phase I regulations. The United States argues that the Supreme Court need not determine whether discharges from logging roads constitute “point sources,” regardless of the Silvicultural Rule, because such discharges are not subject to permitting requirements in the Phase I program under EPA’s reasonable interpretation of its own regulations. According to the United States, “the case will be at an end” if the Court rejects the Ninth Circuit’s holding that the pertinent discharges are “associated with industrial activity,” and doing so “would be the soundest and most straightforward way of deciding th[e] case.”[26] The United States deviates from the petitioners by arguing that the lower courts properly exercised jurisdiction over the lawsuit. According to the United States, the Ninth Circuit did not invalidate EPA’s Phase I regulations, but rather interpreted it, albeit “erroneously.”[27] The United States asserts that the court’s “treatment of the Silvicultural Rule presents a closer question,” but that the Ninth Circuit offered a permissible interpretation of the Silvicultural Rule to “bring it into harmony with the” Ninth Circuit’s view of the CWA, even though the Ninth Circuit failed to afford EPA with appropriate deference in doing so.[28]

Other Amicus Briefs

In addition to the United States, all 13 of the other amicus briefs that have been filed support the petitioners. (The briefs are available here.) The amici joining in these briefs are:

1. The United States Chamber of Commerce;
2. Law professors who specialize in administrative and environmental law;
3. The National Federation of Independent Business Small Business Legal Center;
4. The American Farm Bureau Federation, National Pork Producers Council, and National Council of Farmer Cooperatives;
5. The Association of Oregon Counties, Idaho Association of Counties, Association of O&C Counties, and Douglas County;
6. The National Governors Association, National Association of Counties, National Conference of State Legislatures, International City/County Management Association, and Council of State Governments;
7. The Ruffed Grouse Society;
8. A collection of two national forestry trade associations and thirteen state and regional forestry organizations;
9. The Pacific Legal Foundation and eighteen forestry and logging associations, conservationists, and forest land owners;
10. Thirty states;
11. Eight organizations/associations that represent companies and families that depend on forests and rangelands;
12. The Mountain States Legal Foundation; and
13. Five organizations representing forestry professionals, universities, academics, and scientists with expertise and interests in forestry management.

The majority of the amici underscore the petitioners’ arguments regarding the validity of the Silvicultural Rule and the Phase I stormwater regulations, the lack of deference afforded to EPA regarding those rules, and the impropriety of allowing jurisdiction.

Several amici focus on the latter point, such as the Chamber of Commerce, the Ruffed Grouse Society, the National Alliance of Forest Owners, et al, and the Mountain States Legal Foundation, in part highlighting that allowing jurisdiction in this instance would propagate uncertainty regarding the validity of regulations that have long been in place and that could now plausibly be subject to challenge.

Many of the amici, such as the farming and forestry associations, state and local governments, and forestry scholars and scientists, point out the importance and efficacy of local best management practices to address the environmental impacts of runoff from logging roads and the financial and practical burden that imposing NPDES requirements could have on those that own, use, and regulate logging roads. For example, the Pacific Legal Foundation and the groups that joined in that brief assert that the Ninth Circuit decision could add approximately 750,000 NPDES permit applications—nearly double the total number of NPDES permits administered by EPA. Additionally, several of the state and local government amici, in addition to some of the regulated parties and others that rely on forest and logging roads for their businesses and recreational pursuits, express concern that the financial burden imposed by the Ninth Circuit decision could result in fewer open and maintained logging and forest roads, which would negatively impact various logging and agricultural businesses, reduce tax revenue, and impede recreational pursuits.

Finally, the National Federation of Independent Business Small Business Legal Center raises potential constitutional concerns (Ninth and Tenth Amendments) with the Ninth Circuit’s decision.

For more information regarding this article, please contact Meline MacCurdy or any other member of Marten Law’s Water Quality practice group.