Thursday, March 21, 2013

Supreme Court Rules Logging Roads Don’t Violate Pollution Law

The Supreme Court on Wednesday sided with timber interests in a dispute over the regulation of runoff from logging roads in western forests. In a 7-1 vote, the court reversed a federal appeals court ruling which held that muddy water running off roads used in industrial logging is the same as any other industrial pollution, requiring a Clean Water Act permit from the Environmental Protection Agency. EPA itself disagreed with that court ruling, and Justice Anthony Kennedy said for the court that the agency’s reading of its own regulations is entitled to deference from the court. In any event, the agency has since issued a new regulation that removes any doubt that water from logging roads is the same as runoff from a farmer’s field, not industrial pollution. AP

And here is a Q&A from OPM:
Q: What was at stake in this case?
A: There are hundreds of thousands of miles of logging roads in the Northwest and some of those roads send runoff into nearby streams.
Q: So what’s the problem?
A: That fine sediment can smother fish eggs and cause problems for salmon. The federal Environmental Protection Agency has said that the Clean Water Act leaves this kind of stormwater pollution on timberland up to individual states to regulate.
The Northwest Environmental Law Center sued. It said that under the plain language of the Clean Water Act, logging road runoff is industrial pollution and the EPA has to regulate it.
Q: A lower court had sided with the environmental groups, but the Supreme Court reversed that decision. Why?
A: The 9th Circuit Court of Appeals had ruled that the EPA’s interpretation of the Clean Water Act was illogical. And it had found that runoff from logging roads fit the definition of industrial stormwater pollution.
In a 7-to-1 decision the Supreme Court said that was wrong. The EPA had for 35 years interpreted the law not to apply to logging roads. And the court should defer to the EPA’s reading of its own rules.
Q: So one justice dissented in this case. Who was it?
A: It was Antonin Scalia, one of the most conservative Supreme Court justices. Scalia actually agreed with the environmental groups in this case and wrote a very forceful dissent. Enough is enough, he said. According to the Clean Water Act, forest road runoff that flows through a culvert is industrial pollution. And government agencies like the EPA should follow a plain reading of the law.
Q: What are court-watchers making of this odd-bedfellows situation?
A: Allison LaPlante, Clinical Law Professor at Lewis and Clark Law School, says it’s very unusual for Scalia to side with an environmental group.
“On the one hand, it’s pretty uncommon to see Justice Scalia aligned in any way, shape or form with the environmentalists. It’s on some level, though, not surprising, because Justice Scalia is often known to advocate for a plain meaning approach to the law, which is the statute means what it says, the regulations mean what they say.”
Q: What did the other justices think of that argument?
A: Chief Justice John Roberts actually suggested he’s sympathetic to it. There is a longstanding legal precedent behind this idea of the courts deferring to government agencies when it comes to interpreting this kind of regulation. And Roberts wrote that he’d like to see more cases that challenge that issue. Here’s LaPlante again:
“Okay, the bar is now aware that their might be some interest in reconsidering this, so have at it, bring it on. It was to me clearly an invitation to litigants to bring this issue back before the court.”

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