Environmental - Appeals Court: Mar 21, 2013

Thursday, March 21, 2013

Decker v. Northwest Environmental Defense Center

Mar 20: In the U.S. Supreme Court, Case Nos. 11–338 and 11–347. The decision also decides the case of Georgia-Pacific West, Inc. v. Northwest Environmental Defense Center (NEDC) (No. 11-347). Appealed from the U.S. Court of Appeals, Ninth Circuit [See WIMS 5/19/11]. Justice Kennedy delivered the opinion in which Roberts, Thomas, Ginsburg, Alito, Sotomayor, and Kagan joined and Justice Scalia, joined in parts I & II. Justice Roberts filed a concurring opinion, in which Alito joined. Justice Scalia filed an opinion concurring in part and dissenting in part. Justice Breyer took no part in the consideration or decision of the cases [See WIMS 11/26/12].

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?

According to the majority opinion, these cases present the question whether the Clean Water Act (Act) and its implementing regulations require permits before channeled stormwater runoff from logging roads can be discharged into the navigable waters of the United States. Under the statute and its implementing regulations, a permit is required if the discharges are deemed to be "associated with industrial activity." The Environmental Protection Agency (EPA), with the responsibility to enforce the Act,has issued a regulation defining the term "associated with industrial activity" to cover only discharges "from any conveyance that is used for collecting and conveying stormwater and that is directly related to manufacturing, processing or raw materials storage areas at an industrial plant." 40 CFR 122.26(b)(14) (2006). The EPA interprets its regulation to exclude the type of stormwater discharges from logging roads at issue here. See Brief for United States as Amicus Curiae 24–27. The majority concludes, ". . .the EPA's determination is a reasonable interpretation of its own regulation; and, inconsequence, deference is accorded to the interpretation under Auer v. Robbins, 519 U. S. 452, 461 (1997)."

It should also be noted that on November 30, 2012, U.S. EPA Administrator Lisa Jackson signed a Final Rule revising its Phase I stormwater regulations to clarify that stormwater discharges from logging roads do not constitute stormwater discharges associated with industrial activity and that a National Pollutant Discharge Elimination System (NPDES) permit is not required for these stormwater discharges [See WIMS 12/4/12]. When the rule was signed, EPA said 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."

Among other arguments, NEDC said elsewhere in the Industrial Stormwater Rule the EPA has required NPDES permits for stormwater discharges associated with other types of outdoor economic activity. See §122.26(b)(14)(iii) (mining); §122.26(b)(14)(v) (landfills receiving industrial waste); §122.26(b)(14)(x) (large construction sites). The Supreme Court majority indicated that, "The EPA reasonably could conclude, however, that these types of activities tend to be more fixed and permanent than timber-harvesting operations are and have a closer connection to traditional industrial sites. In light of the language of the regulation just discussed, moreover, the inclusion of these types of economic activity in the Industrial Stormwater Rule need not be read to mandate that all stormwater discharges related to these activities fall within the rule, just as the inclusion of logging need not be read to extend to all discharges from logging sites. The regulation's reach may be limited by the requirement that the discharges be 'directly related to manufacturing, processing or raw materials storage areas at an industrial plant.' §122.26(b)(14)."

Finally, the majority ruled, "The preamendment version of the Industrial Stormwater Rule, as permissibly construed by the agency, exempts discharges of channeled stormwater runoff from logging roads from the NPDES permitting scheme. As a result, there is no need to reach petitioners' alternative argument that the conveyances in question are not 'pipe[s], ditch[es], channel[s], tunnel[s], conduit[s],' or any other type of point source within the Act's definition of the term. §1362(14).For the reasons stated, the judgment of the Court of Appeals is reversed, and the cases are remanded for proceedings consistent with this opinion.

In an interesting concurring opinion, Justice Roberts pointed out, "The opinion concurring in part and dissenting in part raises serious questions about the principle set forth in Bowles v. Seminole Rock & Sand Co., 325 U. S. 410 (1945), and Auer v. Robbins, 519 U. S. 452 (1997). It may be appropriate to reconsider that principle in an appropriate case. But this is not that case." He said both Respondent and Petitioners mentioned the issue in footnotes with no arguments. Also, he said, "Out of 22 amicus briefs, only two -- filed by dueling groups of law professors -- addressed the issue on the merits."

Justice Roberts concluded, "The issue is a basic one going to the heart of administrative law. Questions of Seminole Rock and Auer deference arise as a matter of course on a regular basis. The bar is now aware that there is some interest in reconsidering those cases, and has available to it a concise statement of the arguments on one side of the issue. I would await a case in which the issue is properly raised and argued. The present cases should be decided as they have been briefed and argued, under existing precedent."

Justice Scalia expanded on the issue in a lengthy dissent saying, "I join Parts I and II of the Court's opinion; I agree that these cases are not moot and that the District Court had jurisdiction. I do not join Part III. The Court there gives effect to a reading of EPA's regulations that is not the most natural one, simply because EPA says that it believes the unnatural reading is right. It does this, more- over, even though the agency has vividly illustrated that it can write a rule saying precisely what it means—by doing just that while these cases were being briefed. Enough is enough."

He continued, "For decades, and for no good reason, we have been giving agencies the authority to say what their rules mean, under the harmless-sounding banner of 'defer[ring] to an agency's interpretation of its own regulations.' Talk America, Inc. v. Michigan Bell Telephone Co., 564 U. S. ___, ___ (2011) (SCALIA, J., concurring) (slip op., at 1). This is generally called Seminole Rock or Auer deference. See Bowles v. Seminole Rock & Sand Co., 325 U. S. 410 (1945); Auer v. Robbins, 519 U. S. 452 (1997)." He concludes his dissent saying, "It is time for us to presume (to coin a phrase) that an agency says in a rule what it means, and means in a rule what it says there."

Access the Supreme Court opinion, and concurring and dissenting opinions (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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