Monday, November 26, 2012

Decker v. NEDC Set For Oral Arguments

Nov 26: The National Alliance of Forest Owners (NAFO) reports that all briefs are filed at the U.S. Supreme Court for the forest roads case Decker v. Northwest Environmental Defense Center (NEDC). Oral arguments are scheduled for December 3, 2012 and a decision is expected next spring. The three questions at hand are:
  • 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]

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