Thursday, December 20, 2012
Wednesday, December 5, 2012
In the opinion, the Supreme Court indicates that periodically from 1993 until 2000, the U. S. Army Corps of Engineers (Corps) authorized flooding that extended into the peak growing season for timber on forest land owned and managed by petitioner, Arkansas Game and Fish Commission (Commission). Cumulative in effect, the repeated flooding damaged or destroyed more than 18 million board feet of timber and disrupted the ordinary use and enjoyment of the Commission's property. The Commission sought compensation from the United States pursuant to the Fifth Amendment's instruction: "[N]or shall private property be taken for public use, without just compensation." The question presented is whether a taking may occur, within the meaning of the Takings Clause, when government-induced flood invasions, although repetitive, are temporary.
The Supreme Court said, "Ordinarily, this Court's decisions confirm, if government action would qualify as a taking when permanently continued, temporary actions of the same character may also qualify as a taking. In the instant case, the parties and the courts below divided on the appropriate classification of temporary flooding. Reversing the judgment of the Court of Federal Claims, which awarded compensation to the Commission, the Federal Circuit held, 2 to 1, that compensation may be sought only when flooding is 'a permanent or inevitably recurring condition, rather than an inherently temporary situation.' 637 F. 3d 1366, 1378 (2011). We disagree and conclude that recurrent floodings, even if of finite duration, are not categorically exempt from Takings Clause liability."
Tuesday, December 4, 2012
EPA indicated that it was "taking this action in response to Northwest Environmental Defense Center v. Brown (9th Circuit), in which the court held that stormwater runoff from certain logging roads is a point source discharge of industrial stormwater that requires an NPDES permit. EPA did not intend for logging roads to be regulated as industrial facilities and has revised its stormwater regulations to clarify the Agency's intent."
On December 3, the U.S. Supreme Court heard oral argument for the forest roads case Decker v. Northwest Environmental Defense Center (NEDC) [See WIMS 11/26/12], which addresses three questions: (1) Is the Silvicultural Rule defining these roads as nonpoint sources a valid interpretation of the Clean Water Act (CWA)? (2) Did the U.S. EPA exclude logging from the industrial activity category which requires stormwater discharge (NPDES) permits? and, (3) Does the CWA allow NEDC to file this case in a Federal district court 30 years after the Silvicultural Rule became final? EPA's final rule now makes most of the arguments moot.
Fifteen briefs support the positions of the state and industry petitioners; eight support NEDC. Thirty-one state attorneys general, associations of governors, state foresters, counties, state governments, state legislators, local governments, affected counties in the Northwest plus the Federal government all supported the petitioners. No states or other government representatives supported NEDC.
In the opening of the oral argument, Chief Justice Roberts said the petitioners, ". . .congratulations to your clients -- getting almost all the relief they're looking for under the new rule issued on Friday." However, the petitioners continued to argue, ". . .there is an additional reason why we don't think that the rule here moots -moots the issue. Let -- let's assume that there is a petition for review. I think that's a fairly safe -safe assumption. That some environmental groups argue that the new rule is impermissible because it's at odds with the language of the -- language of the statute, an argument that I think is -- is near frivolous, but that I think will be -- predictably will be made. The rule is prospective. What we have is a judgment from the Ninth Circuit that says that we were in violation for decades by not having permits. And . . ."
Access the complete oral argument transcript (click here). Access a prepublication copy of the EPA final rule (click here). Access the Supreme Court docket (click here). Access links to all of the Merit and Amicus briefs (click here). Access the complete Ninth Circuit opinion (click here). Access EPA's Stormwater Discharges From Forest Roads website for complete background and information (click here). [#Water, #Land, #SupCt, #CA9]
Friday, November 30, 2012
In March 2011, the U.S. Court of Appeals, Ninth Circuit (Case No. 10-56017) ruled partially in favor of NRDC, et al [See WIMS 3/11/11] and overturned a district court's grant of summary judgment in favor of two municipal entities and Los Angeles County. In that case Plaintiffs contended that Defendants County of Los Angeles (County) and Los Angeles County Flood Control District (District) were discharging polluted urban stormwater runoff collected by municipal separate storm sewer systems (ms4) into navigable waters in Southern California. The levels of pollutants detected in four rivers exceed the limits allowed in a National Pollutant Discharge Elimination System (NPDES) permit which governs municipal stormwater discharges in the County. Defendants contended that there was no evidence establishing their responsibility for, or discharge of, stormwater carrying pollutants to the rivers.
Thursday, November 29, 2012
Wednesday, November 28, 2012
"Interior was carrying out a policy decision made by the President. On display throughout was the 'decision, activity . . . and dispatch' that the Framers envisioned for the Executive Department of government. THE FEDERALIST NO. 70, at 423 (Alexander Hamilton) (Clinton Rossiter ed., 1961). Litigation was not able to keep pace with these developments. See id. (discussing the Executive's unique role 'in the most critical emergencies of the state'). The national importance of this case weakens, not strengthens, the propriety of the court's contempt finding. The controversial policy decisions that the May and July Directives reflected were made at the highest level of government. In implementing those decisions, we do not discern a violation of a clear provision of the district court's order by the words expressed or actions taken by the Secretary."The district court dealt expeditiously and forcefully with extremely significant litigation. The potential APA violations that led to the initial injunction are not at issue today, but such violations, if significant, would justify a district court's consideration of an injunction. Our decision is a narrow one. We conclude that there is no clear and convincing evidence that Interior's actions after the injunction violated the clear terms of the injunction as drafted. Therefore, there was no civil contempt."
Monday, November 26, 2012
- Is the Silvicultural Rule defining these roads as nonpoint sources a valid interpretation of the Clean Water Act (CWA)?
- Did the U.S. EPA exclude logging from the industrial activity category which requires stormwater discharge (NPDES) permits?
- Does the CWA allow NEDC to file this case in a Federal district court 30 years after the Silvicultural Rule became final?
NAFO indicates that fifteen briefs support the positions of the state and industry petitioners; eight support NEDC. Thirty-one state attorneys general, associations of governors, state foresters, counties, state governments, state legislators, local governments, affected counties in the Northwest plus the Federal government all supported the petitioners. No states or other government representatives supported NEDC.
One group of law professors supported the petitioners on a specific legal point regarding deference to EPA's administrative and statutory interpretations. Two groups of law professors supported NEDC -- one arguing that deference is not appropriate in this case and the other arguing the case was properly filed under the CWA. The brief on deference argues that other courts have questioned the validity of the Silvicultural Rule and that while legislation to add the Rule to the CWA has been introduced in the past, Congress did not do so. This brief conveniently ignores that several courts have upheld the Silvicultural Rule and that congressional support for the legislation forced EPA to withdraw its proposed repeal of the Rule thus making the CWA amendment unnecessary.
Thirty-eight forestry professors, two forestry schools, the leading U.S. professional forestry associations, and retired U.S. Forest Service employees supported the petitioners. Fifteen former EPA and state regulators supported NEDC. A number of forestry associations supported the petitioners (including NAFO), plus several agricultural and business groups and a wildlife conservation group. Several local northwest environmental and fishery groups plus a few national groups supported NEDC.
NAFO said that competent legal arguments were raised on both sides. Some of the briefs, however, raised technical arguments. For example, the former EPA employees argue that forestry-related sediment is a leading source of water quality impairment to rivers and streams nationwide. However, NAFO said the impaired waters data on EPA's website show otherwise. Forestry ranks far down the list of impairment causes, with only a small percentage of the overall stream segments lists under CWA section 303(d) by the states as impaired.
Some briefs argue that NPDES permitting for logging roads is feasible, flexible, and not unduly burdensome as it will focus on an easily identified subset of forest roads and will employ a general permit, referencing the Multi-Sector Stormwater General Permit as an example. These briefs do not attempt to define what constitutes a forest road, let alone explain how EPA would define a subset deserving of regulation. As for the Multi-Sector Stormwater General Permit, this provides a variety of approaches to a number of industrial sectors focused on relatively identifiable facility sites, with complex paperwork and monitoring requirements, some of which must be conducted immediately after a rain event. Hardly flexible and easily costly.
Finally, some briefs detailed the water quality and aquatic ecosystem problems caused by sediment from forest road runoff. Sediment is precisely why state-administered Best Management Practices (BMPs) exist. NAFO indicates that what is in dispute is whether NPDES permits are the best way to control runoff and thus improve water quality. Not one brief cited any study or report showing that permits are a better control system than BMPs. One brief detailed several federal court decisions finding procedural flaws with the use of BMPs in various water programs in Oregon. The brief filed by professional and academic foresters, however, cited study after study showing the effectiveness of BMPs and the high compliance rates even in states where BMPs are not mandatory.
Access a release from NAFO (click here). Access the Supreme Court docket (click here). Access links to all of the Merit and Amicus briefs (click here). Access the complete Ninth Circuit opinion (click here). [#Water, #Land, #SupCt, #CA9]