January 23, 2013

Supplemental briefs in Decker give the Court many options

By Brian T. Hodges Senior Attorney

The parties in Decker filed their supplemental briefs with the Supreme Court today.  To recap: The issue in Decker is whether logging road owners must obtain National Pollution Discharge Elimination System (NPDES) permits to cover stormwater runoff from the roads, either because channeled runoff constitutes a point source discharge, or because it falls under a regulated category of stormwater associated with industrial activity.  In December, I reported on the new EPA rule that clarifies that logging road runoff does not qualify as an industrial stormwater discharge.  The new rule dominated questioning at oral argument, and earlier this month I noted that the Court had requested post-argument supplemental briefing to address the effect of the new rule on the litigation.

Well, the supplemental briefs are in, and the arguments are summarized here:

The petitioners (timber companies): The petitioners urge the Court to issue a substantive opinion resolving the “point source” and “industrial activity” questions, and reversing the Ninth Circuit.  The case is not moot, they argue, because the new rule did not change the law; rather, it confirmed the position they have advanced from the beginning, which is that EPA’s stormwater regulations exempt logging road runoff from NPDES permitting.  They contend that EPA’s authority to exempt logging roads is a live issue that should be resolved.  They also explain that resolving the question of EPA’s authority to adopt the exemption will cut off new challenges to the revised rule, and therefore spare the courts from having to litigate Decker all over again.  At the very least, say the petitioners, the Court should vacate the Ninth Circuit’s judgment and remand for reconsideration in light of EPA’s new rule.

The respondent (Northwest Environmental Defense Center): NEDC argues that the new rule does not foreclose its claims against the petitioners, and that the Court should allow lower courts to consider those claims in light of EPA’s new rule in the first instance.  NEDC thus asks the Court to dismiss the case as improvidently granted, and remand so the group can continue to press its claims below.  NEDC also asks the Court to affirm any aspect of the Ninth Circuit’s opinion that the Court chooses to address.

United States (by invitation of the Court): The federal government argues that the case was rendered moot by EPA’s new rule because the rule confirms that the timber companies will not have to obtain NPDES permits.  This would be so even if the Supreme Court were to uphold the Ninth Circuit’s opinion, which was issued while the old regulatory framework was in place.  The government believes the Court should vacate the Ninth Circuit’s judgment, and remand with instructions to dismiss NEDC’s complaint.  An alternative avenue would be to vacate the Court of Appeals’ judgment and remand to allow that court to address the effect of the revised rule.

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