Wednesday, December 14, 2011

Northwest Environmental Defense Center v. Brown

In Dec 12: The U.S. Supreme Court issued an order relating to the Ninth Circuit Court of Appeals decision in the case of Northwest Environmental Defense Center v. Brown (Supreme Ct docket Nos. 11-338 & 11-347) [See WIMS 5/19/11]. The order simply states that, "The Solicitor General is invited to file a brief in these cases expressing the views of the United States. Justice Breyer took no part in the consideration or decision of these petitions."
    In the case, Northwest Environmental Defense Center (NEDC) brought a suit against the Oregon State Forester and members of the Oregon Board of Forestry in their official capacities and against various timber companies. NEDC argued that Defendants violated the Clean Water Act (CWA) and its implementing regulations by not obtaining permits (i.e. discharge permits) from the U.S. 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 said the discharges were from "point sources" within the meaning
of the CWA and that they therefore require permits under the National Pollutant Discharge Elimination System (NPDES). The district court concluded that the discharges were exempt from the NPDES permitting process by the Silvicultural Rule, but, the Appeals Court overturned the decision and concluded that the discharges require NPDES permits.
    Regarding the Supreme Court order, David Tenny, President and CEO of the National Alliance of Forest Owners (NAFO) released a statement on the order. NAFO is an organization of private forest owners committed to advancing Federal policies that promote the economic and environmental benefits of privately-owned forests at the national level. NAFO membership encompasses more than 79 million acres of private forestland in 47 states.  Working forests in the U.S. support 2.5 million jobs.
    Tenny said, "We applaud the Supreme Court for scrutinizing the Ninth Circuit's decision to disregard EPA's 35 years of success regulating forest management as a nonpoint source under Clean Water Act. The Court is hearing not only the voice of forest owners and managers across the country but also Attorneys General from 26 states who joined a brief supporting EPA's historic approach. The policy and legal importance of this case is clear.

    "For nearly four decades, the EPA has cooperated with the states under established Clean Water Act authority to build a network of Best Management Practices providing flexible and effective water quality protection during forestry operations.  This has been a Clean Water Act success story. The Ninth Circuit's decision threatens to upend this progress by replacing an efficient and flexible system that promotes clean water with a costly and inflexible permit requirement that invites additional litigation. In the end the Ninth Circuit's decision hurts forest owners and forests alike.

    "While this is a significant first step, there is no guarantee that the Supreme Court will hear the case and reverse the Ninth Circuit Court's overstep. It does, however, provide the Administration and the Solicitor General an opportunity to submit to the Supreme Court a clear and unambiguous defense of EPA's longstanding and legally appropriate approach to regulating forest roads as nonpoint sources."

    Access the Supreme Court order (click here, page 2). Access the Supreme Court docket (click here). Access a release from NAFO (click here). Access the complete Ninth Circuit opinion (click here). [*Water, *Land, *CA9, #SupCt]