Last-minute EPA rule dominates questioning at Decker oral argument

December 05, 2012 | By BRIAN HODGES

The U.S. Supreme Court heard oral argument in Decker v. Northwest Environmental Defense Center earlier this week.  Recall that the issue in Decker is whether logging road owners and users must obtain federal National Pollution Discharge Elimination System (NPDES) permits to cover stormwater runoff on the roads.  PLF filed an amicus brief on behalf of the Foundation and several other organizations urging the Court to reverse the Ninth Circuit’s opinion, which held that logging road runoff is subject to NPDES permitting because it either qualifies as a “point source” discharge if channeled through ditches, or it falls under a regulated category of stormwater associated with “industrial” activity.

Despite voluminous briefing on those important issues, the Court seems to be questioning whether the case is moot.  The reason is that last Friday EPA finalized a new rule intended to affirm that logging road runoff should not be treated as stormwater associated with industrial activity.  The Court’s questions at oral argument were directed at the effect of the new rule more than any other issue.

The timber company petitioners pressed the Court to decide the case and issue an opinion reversing the Ninth Circuit.  A ruling to that effect would at least establish that logging road runoff is not subject to NPDES permitting under the regulatory framework that was in place when Northwest Environmental Defense Center (NEDC) filed its complaint.  In the alternative, the petitioners argued that the Court should vacate the Ninth Circuit’s opinion if the Court thinks the case is moot as a result of EPA’s new rule.

NEDC took a different view.  It argued that the Court should dismiss the case as improvidently granted, and not touch the Ninth Circuit’s opinion.  That would allow NEDC to continue to seek damages under its original complaint.  Curiously, NEDC also seems to believe that the validity of EPA’s new rule will be in dispute in its current suit, though it is unclear why, exactly.  One presumes that NEDC would be required to challenge the new rule (if it so chose) in separate proceedings pursuant to the Clean Water Act’s specific provisions governing such rule challenges.  Nevertheless, NEDC’s counsel told the Court that, “The main event going forward is the new rule, because the citizen suit seeks cessation of ongoing violations of the Act, and that remains the core of our lawsuit which is still seeking damages.”

What is clear is that the Court was intensely concerned about the questions that arose as a result of the EPA’s new rule, and did not appear to be focused on adjudicating the merits of the case.  We are looking for a decision early next year.