Supreme Court sends environmental group packing; loggers, ranchers celebrate

Apr 1, 2013

It’s a common complaint among loggers, ranchers, petroleum drillers, fishermen and other industries that depend on natural resources—federal regulations are taking over like creeping vines. With recent decisions from the Environmental Protection Agency (EPA) that have attempted to regulate everything from carbon dioxide to storm water, a growing number of businesses are chafing under an unmanageable tangle of permitting, clearances, and sticky red tape.

But while trends suggest that business owners can expect a steady increase in environmental guidelines, it also appears that federal regulation is not without bounds. In a serious victory for natural resource users, the Supreme Court ruled last week that culverts and ditches that convey storm water runoff from forest roads into streams should not be considered “point sources” of pollution, and are therefore not subject to regulation under the Clean Water Act (CWA).

The suit pitted Portland, ORbased group Northwest Environmental Defense Center (NEDC) against the Oregon Department of Forestry, though a host of industry groups filed amicus briefs in the case. A key point of NEDC’s argument was that runoff from logging roads should be considered industrial pollution. The Supreme Court disagreed.

Pacific Legal Foundation attorney Daniel A. Himebaugh, counsel for the American Forest Resource Council (AFRC), strongly endorsed the decision.

“The court should be applauded for striking a blow for simple common sense,” Himebaugh said in a statement. “The claim that rainwater on forest roads is ‘industrial pollution’ is a serious contortion of the Clean Water Act, and the Supreme Court was right to reject it decisively.”

The decision overturns a 2010 ruling by the 9th Circuit Court which held that— like factories, sewage treatment plants and feedlots— water conveyances on forest roads were point sources of pollution under the CWA and are subject to regulation under the National Pollutant Discharge Elimination System. Had that decision stood, it is likely that private and public owners of forest roads would have had to apply to EPA for approval of every runoff drainage conveyance on forest roads.

Critics contend that the vastly expanded regulation would have resulted in an unmanageable gridlock of permitting on thousands of miles of roads, as well as setting the table for a veritable feast of environmental litigation.

“The consequences would have been huge,” said Tom Partin, president of AFRC. “If the (9th Circuit) decision had been upheld, every culvert would have had to have a permit. It would have been an opportunity to have a myriad of lawsuits.”

NEDC filed the suit in 2006, claiming that logging trucks in the Tillamook State Forest were causing silt to run off logging roads into streams, harming fish and aquatic life. Although a federal district court dismissed NEDC’s claim in 2007, the 9th Circuit later reversed that ruling, which was again reversed by the Supreme Court last week, much to the satisfaction of natural resource users.

Although the suit focused specifically on the perceived impacts of logging activity, according to Partin, failure to reverse the 9th Circuit ruling would have hit all owners and users of forest roads, including ranchers, gravel haulers, hunters and others.

“It would have impacted everybody,” said Partin. “It would have been a small step to get all of these activities tied up.”

The March 20 decision sends a clear message from the Supreme Court that environmental laws have limits. Given the present trend of expanding governmental oversight, it will be interesting to see whether the Supreme Court’s decision in this case has a chastening effect on federal watchdogging. Yet while the present administration’s zeal for creating new environmental regulations has drawn sharp criticism from conservatives and industry leaders, interestingly, the impetus in this case did not originate with EPA. In an unusual departure from EPA’s strong track record of imposing environmental guidelines, the agency actually disagreed with NEDC’s claim that culverts and ditches be treated as point sources. EPA went so far as to issue a clarification last year that storm runoff from logging roads is exempted from oversight under the CWA because it is not associated with industrial activity.

In its clarification, EPA classified storm runoff as a “nonpoint source” of pollution, to be regulated by state governments, not EPA. The Supreme Court agreed with this interpretation.

“I think what it shows is the EPA sticking to the more traditional interpretation of what a non-point source is, and the Supreme Court showing deference to that interpretation,” said Kate L. Moore, an attorney with Dunn Carney Attorneys at Law, Portland. Although Moore called the decision “helpful,” she predicted that environmental groups would continue to press for very broad interpretations of environmental laws like the Clean Water Act. Partin agreed.

“[NEDC] wanted to tie forest road use to that same industrial standard, and they’re going to continue to do that,” said Partin.

The Public Lands Council (PLC) and the National Cattlemen’s Beef Association (NCBA) joined logging industry groups in filing amicus briefs in the case. Dustin Van Liew, executive director of PLC, praised the decision. “It clearly states that the Supreme Court thinks there are limits to the Clean Water Act,” Van Liew said. PLC and NCBA were represented in the case by the Western Resources Legal Center (WRLC), a nonprofit organization that trains law students how to represent the natural resource industries. WRLC is based out of Lewis and Clark Law School, Portland.

The Supreme Court ruling is not the only recent decision to trim back EPA’s authority under the CWA. A decision by a Virginia federal district court in January found that EPA had overstepped its authority when it attempted to regulate the quantity of storm water running into Fairfax County’s Accotinck Creek. EPA maintained the water should be considered a pollutant because of its potential to carry silt into the creek. The court ruled that although EPA has the power to regulate pollutants, it has no authority to regulate the flow of water itself. EPA has chosen not to appeal the decision. — Andy Rieber WLJ Correspondent,