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Supreme Court Argument Recap: Changing Rules During Litigation – Logging Roads & EPA Pollution Permits

Posted in Judicial Process, Judicial Review & Remedies

In an ongoing effort to prevent logging, environmentalists have woven the most complex of webs in Decker v. Northwest Environmental Defense Center and Georgia-Pacific West, Inc. v. Northwest Environmental Defense Center, argued this morning in the Supreme Court of the United States.  At bottom, Congress, the Environmental Protection Agency (EPA), the Department of Justice (DOJ)’s Solicitor General, the State of Oregon, and the logging companies  all agree that logging road culverts are not “point sources” under the Clean Water Act.  When the Office of Management and Budget (OMB) cleared EPA’s Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads final rule last Friday, as noted here this morning, the entire case began to change.  Argument in the Supreme Court this morning did not focus as much on decision below, or the statute or rule that decision interpreted, but on the new rule and whether any part of the case was left for the Court to decide – and how.

The Decision Below:  The United States Court of Appeals for the Ninth Circuit succinctly stated the case before it in beginning its decision:

Northwest Environmental Defense Center (“NEDC”) brings suit against the Oregon State Forester and members of the Oregon Board of Forestry … and against various timber companies ….  NEDC contends that Defendants have violated the Clean Water Act (“CWA”) and its implementing regulations by not obtaining permits from the [EPA] for stormwater — largely rainwater — runoff that flows from logging roads into systems of ditches, culverts, and channels and is then discharged into forest streams and rivers.  NEDC contends that these discharges are from “point sources” within the meaning of the CWA and that they therefore require permits under the National Pollutant Discharge Elimination System (“NPDES”).

EPA, through DOJ, argued as amici that its position had long been settled that logging ditches and culverts were not point sources subject to the CWA and that the Ninth Circuit owed EPA’s interpretation judicial deference under Auer.

The Ninth Circuit disagreed, holding conclude that stormwater runoff from logging roads that is collected by and then discharged from a system of ditches, culverts, and channels is a point source discharge for which an NPDES permit is required.

Congressional Intervention:  So dissatisfied was Congress about the Ninth Circuit’s decision that it enacted, through rare bipartisanship, an appropriations rider to the Consolidated Appropriations Act, 2012 (a hint: it starts on page 1046).  Some colleagues appear to believe that the rider lapsed just prior to the beginning of the Supreme Court Term at the end of the fiscal year, but there is considerable debate on this point and whether it continues in the current Continuing Resolution until March 27, 2013 – and may continue on and on as is the life of appropriations riders once enacted.

Certiorari & Regulations:  In a belt and suspenders approach, the Administration continued to support the State of Oregon and the loggers while proposing new regulations to make even clearer the regulatory resolution of any ambiguity in the CWA.  The final rule was released to the public last Friday and the Solicitor General’s divided amicus argument is this morning – if past is prologue (and it always is), the Solicitor General’s office had a hand in clearing this regulation in a “timely” fashion.  This has happened many times before and reflects an approach to avoiding unnecessary decisions when possible (of course, it doesn’t always work).

Issues:  The core issue is whether the Ninth Circuit should have deferred to EPA’s longstanding interpretation that NPDES permits are not required for channeling runoff from logging roads, and erred in mandating that EPA regulate such runoff as NPDES industrial stormwater.  EPA has taken a practical position for decades that forest or logging roads are not industrial, and that channeling natural runoff was not a discharge of pollution.

A number of other issues, however, could prove the demise of Ninth Circuit’s decision including simple statutory construction – an exercise that is inherently the province of judicial disagreement.  The Supreme Court is not shy about disagreeing with a lower court’s interpretation of statute and legislative history.  The statute itself is highly expansive and selective legislative history is equally so.

Argument:  Neither the core issue nor the underlying issue caught the Court’s attention:  the Court was interested in whether it actually had a case.  The full oral argument transcript is available to the public.

Petitioners noted the EPA final rule in a letter to the Court last Friday and counsel could not get out his first sentence before the Chief Justice interrupted him:

CHIEF JUSTICE ROBERTS:  Well, before – before we get into that, congratulations to your clients … getting almost all the relief they’re looking for under the new rule issued on Friday.

The Chief Justice thus began a dialogue on whether the new rule rendered the case moot – of no legal significance,

CHIEF JUSTICE ROBERTS: Well, but it’s – it’s an unusual situation for us to rule in a case where the issue has ongoing significance and that’s taken away.  And what we would be doing is, when there is a new rule, we would be considering quite a lot of difficult issues to determine what the old rule was, so that you can unravel what the Ninth Circuit has upheld.

JUSTICE SOTOMAYOR:  I thought the case law was fairly clear that when the EPA changes its rules in your favor, that they can’t – the court can’t impose penalties for a past violation.

The point of mootness is that no risk remains – and that is not entirely clear in a citizen suit under the Clean Water Act.  While the EPA may assess penalties (and seems to eschew that notion), the question becomes whether NEDC could recover attorneys feels or the plaintiffs could be held liable for remediation.

The Chief Justice then steered the argument toward whether the new rule was itself a separate legal challenge:

CHIEF JUSTICE ROBERTS: Now, I suppose that … the Respondents, can challenge the new rule, right?


CHIEF JUSTICE ROBERTS: So you would have simultaneously pending a case involving the interpretation of the old rule and a challenge to the new rule.

MR. BISHOP: Right.

CHIEF JUSTICE ROBERTS: Each of which would have the same issue.

MR. BISHOP: And this Court can cut through all of that by deciding this case, which the simplest way to decide this case is under the stormwater rule.  ….

But can the Court actually do that on a rule that is not before them?  Justice Kagan – a former Solicitor General – asked the question most problematic in any case before the Court in which an intervening rule is promulgated:

JUSTICE KAGAN:  But, Mr. Bishop, as — as Justice Ginsburg said, that question was not decided below, and in the context of this case, which, of course, was very different when it was briefed, Mr. Fisher spent a grand total of 2 pages, and rightly so.  It wasn’t — it was — it was not the main issue in the case then.

So would we really be doing something, you know, a good practice to decide this issue without really any briefing on it and without a decision below?

Deputy Solicitor General Stewart put the issue right before the Court immediately after his formal greeting, but satisfied very few.  Indeed, Mr. Stewart confirmed – directly and by avoidance – the very point made by this blog:  The new rule was designed and scheduled (as best it could) to settle this case:

MR. STEWART:   …  On Friday, the EPA administrator signed a new rule that amends EPA’s existing regulatory definition of the term “stormwater discharge associated with industrial activity.”

The new rulemaking specifically disapproves the Ninth Circuit’s decision in this case and states explicitly that the only facilities under SIC Code 2411 that are industrial are rock crushing, gravel washing, log sorting and log storing.

CHIEF JUSTICE ROBERTS: Were you as surprised as we were to learn about that final rule?

MR. STEWART:  No, we were not.

CHIEF JUSTICE ROBERTS:  When did you learn that the final rule would be issued on Friday?

MR. STEWART:  I learned on Friday morning that the final rule would be issued. I learned on Friday afternoon that the final rule had been issued. Within five minutes of that time, I alerted counsel for both the Petitioners and –

CHIEF JUSTICE ROBERTS:  You had no idea before Friday that this was coming out?

MR. STEWART:  I knew that it was a strong possibility – I knew that it was a strong possibility that it would come out.  The EPA had issued a notice in September of proposed rulemaking.  There was a notation on OMB’s website in early November to the effect that the rule had been transmitted for final approval by OMB.

CHIEF JUSTICE ROBERTS:  In early November?

MR. STEWART:  In early November.

CHIEF JUSTICE ROBERTS:  Maybe in the future you could let us know when something as definite as that comes.

There were 875 pages on the merits briefing in this case, and if we knew that the final rule was imminent, we could have rescheduled the case for April or something along those lines.

MR. STEWART:  I’m sorry, Your Honor.  We you know, we did explain in the opening brief that the rule had been –

CHIEF JUSTICE ROBERTS:  Oh, I know, that there was a proposed rule.  Is it your experience that proposed EPA rules become final within a couple of months particularly?

MR. STEWART:  No, I think that – well, I think this happened more quickly than it usually does, but I think we intended respect for the Court’s processes rather than disrespect.

Obviously, it’s suboptimal for the new rule to be issued the Friday before oral argument; but, it would have been even worse, I think, from the standpoint of the parties’ and the Court’s decision-making processes if the rule had been issued a week or two after the Court heard oral argument.

CHIEF JUSTICE ROBERTS:  Well, maybe.  And it would have been best if we had known about this in early November.

MR. STEWART:  With respect to the impact of the rule on this case, the new rule was not intended to change the meaning of the preexisting definition, and in our view it renders the case moot.

‘And, really, the point of issuing the new –

Oh, to have had that sentence finished.  With all due respect to the Office of the Solicitor General, the point of the rule is to end this litigation the way the United States wishes it to end – and the Solicitor General’s Office is well aware of the timing of the rule.  Playing ostrich is not becoming.  But Mr. Stewart got his chance to finish the sentence:

JUSTICE KENNEDY:  Is it your submission that we should issue an order vacating this moot or issue an order for the Court of Appeals to consider whether it’s moot?


MR. STEWART:  Our preference would be that the Court issue an order vacating as moot; but, it would also be an appropriate decision to leave that to the Court of Appeals in the first instance.

And, again, EPA’s objective in this was to obviate the need to decide vex[ing] questions concerning the meaning of the old rule.  That is, EPA has said for nearly 40 years that it doesn’t believe that NPDES permits are the appropriate way of addressing the dangers to water quality that are posed by these sorts of discharges and –

Respondents, of course, wanted nothing to do with vacature for mootness or vacature and remand, but could not disagree that the case was likely not to be decided:

It seems to me, in light of the recent events, that the most appropriate course for this Court is to just simply dismiss this case as improvidently granted.  …

which would leave the Ninth Circuit’s ruling in place.

These issues are not new – but rather commonplace with the United States seeks to affect a court’s judgment by promulgating new regulations while the judicial decision is on appeal.  The United States has the right to do so, and in many instances may be right in doing so, but it should also be honest about it.