Did the Ninth Circuit just bankrupt Washington’s public schools?

The Ninth Circuit rattled the entire timber industry earlier this year when it held that channeled runoff from forest roads must be regulated as industrial discharge in Northwest Environmental Defense Center v. Brown.  That’s because the court’s decision could force the forest products sector – from large corporations to small private loggers – to spend millions of dollar obtaining permits for hundreds of thousands of forest roads, even though the EPA has never seen a need to directly regulate forest road runoff.  It should therefore be no surprise that over a dozen forest products associations represented by PLF filed an amicus brief asking the U.S. Supreme Court to reverse the Ninth Circuit.  What is surprising, at first blush anyway, is that Washington’s superintendent of public instruction, Randy Dorn, recently persuaded Washington Attorney General Rob McKenna to file a brief supporting reversal too.

That the request came from the state’s highest education official is somewhat unusual, especially since the state Department of Ecology and Department of Natural Resources did not ask McKenna to enter the fray, according to The Seattle Times.  Nevertheless, there is good reason for Dorn to be concerned about the NEDC ruling.  In Washington, a lot of money that is spent to benefit public schools and universities comes from taxing timber harvesting on state trust lands.  What Dorn must have realized is exactly what we pointed out in our amicus brief: requiring unnecessary permits for rainwater runoff on forest roads will weigh the industry down with extra costs and discourage a substantial amount of logging.  A reduction in logging means a reduction in tax revenues.  And a reduction in tax revenues means less money for public schools.

Interestingly, Dorn’s request comes while the state anxiously awaits the Washington Supreme Court’s decision in a potentially major school funding case called McCleary v. State.  The plaintiffs in that case are seeking to enforce a provision of the Washington Constitution that says it is “the paramount duty of the state to make ample provision for the education of all children residing within its borders.”  If the court decides that the state constitution requires more money to be appropriated to schools, then policymakers will have to find a way to do it.  The easy proposal is to raise taxes.  But it seems that a better and more reliable way to resuscitate revenues is to do what McKenna has done in joining the fight against the NEDC decision – commit the state to finding ways to let private industry thrive.