Thursday, August 30, 2012

Previewing Decker v. Northwest Environmental Defense Center

In its upcoming term, the Supreme Court will consider two Clean Water Act/stormwater cases, which I think is two more Clean Water Act/stormwater cases than the Court has heard in all of its previous terms, combined.   A few weeks ago, I posted about NRDC v. County of Los Angeles, which arises out of urban runoff and stormwater infrastructure in Los Angeles County.  The post, in a nutshell, expressed my befuddlement about why the Court took the case.  The other case—Decker v. Northwest Environmental Defense Center—is an entirely different story.  It contains thorny jurisdictional and statutory interpretation questions, and the stakes are high.

Logging roadThe case addressed stormwater runoff from two privately-operated logging roads in Oregon’s Tillamook State Forest.  The logging companies had channelized the runoff though systems of culverts and ditches, and the runoff was conveying sediment—which meets the CWA’s definition of “pollutant”—into surface rivers and streams.  The companies didn’t have National Pollutant Discharge Elimination System permits for these discharges.  According to the environmental plaintiffs, those unpermitted discharges violated the law.  The defendants moved to dismiss the case, and while the district court granted the motion, the Ninth Circuit reversed.  Its opinion cast doubt upon—and, perhaps, invalidated, though that point is in dispute—EPA’s decades-old regulation exempting some silvicultural activities from point source permitting.

So why is this a case to watch?  A few reasons:

1.  The Stakes.  The United States contains a lot of logging roads.  Those roads may be relatively invisible to most urban dwellers, but their aggregate length is fairly mind-boggling; in Maine alone, for example, one of my colleagues estimates there are about 15,000 miles of logging roads.  Not all of those roads have stormwater conveyance systems, but many do.  You can’t have forests without rain, and, in many places, you can’t protect a road from erosion without channelizing the runoff.  The number of discharge points potentially affected by the Court’s decision therefore is huge.  And, as one might expect, the environmental and economic implications are substantial.  Logging roads can be major sources of sediment, and the water quality benefits of improved sediment controls could be significant.  On the other hand, with so many miles of roads, the costs of managing that sediment could add up, as would the administrative burdens associated with drafting and implementing new permitting approaches. 

2.  The Jurisdictional Issues.  The case below involved a challenge to EPA’s longstanding approach to silvicultural stormwater runoff.  With a few narrow exceptions, EPA has never sought to regulate stormwater runoff from forestry activities, and in 1976 it issued regulations that exempt some—perhaps most—forestry activities from the NPDES permitting program.  The plaintiffs argued, and the Ninth Circuit agreed, that this exemption was inconsistent with the text of the Clean Water Act.  But there’s a jurisdictional catch.  Section 509(b) of the Clean Water Act compels petitioners to challenge EPA’s actions in the United States Courts of Appeals, and to do so within 120 days of the action, unless the cause of action could not be brought within that time period.  The plaintiffs here brought their case in a federal district court, and they brought it decades after EPA issued its silvicultural rule. 

The Ninth Circuit found this approach unproblematic.  It concluded that because the plaintiffs could not have brought their action within 120 days (EPA’s broad interpretation of the silvicultural rule was never really clarified, according to the court, until the litigation commenced and the United States filed an amicus brief), section 509(b) didn’t apply.  That was a mistake, according to the defendants and intervenors; they argue that even if the Ninth Circuit was correct that the 120-day period couldn’t have been met, the case still had to be brought in a court of appeals.  But the environmental groups counter that they weren’t really challenging EPA’s silvicultural rule itself, but instead were challenging private actions, which the private entities then attempted to defend by relying on an impermissible interpretation of EPA’s stormwater rule.  In those circumstances, they argue, section 509(b) doesn't apply at all.  If it all sounds rather complicated, well, it is.  But that jurisdictional argument will likely receive some significant attention from the court.

3.  The Merits.  On the merits, the case raises two major issues.  First, do the ditches in question meet the Clean Water Act’s definition of a point source?  That issue seems, to me at least, like an easy one.  No matter what EPA's silvicultural rule purports to say, it seems impossible to credibly interpret the Clean Water Act’s definition of point source—a definition that includes “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel…”—to exclude discrete, discernible systems of roadside ditches, pipes and channels. 

But in 1987, Congress amended the Clean Water Act in ways that complicated the matter and created the second key merits issue.  The 1987 amendments struck a compromise between EPA’s longstanding resistance to regulating stormwater runoff and Congress’s (accurate) sense that stormwater runoff created significant water quality problems.  In CWA section 402(p) Congress exempted stormwater runoff—even stormwater runoff that is discharged from a point source—from regulatory coverage.  But it then designated several types of point source stormwater runoff that still would be covered by the NPDES program, effectively creating narrower exemptions from the broad exemption.  One of those sub-exemptions was for “discharges associated with industrial activity,” which begs the question: are stormwater discharges from forestry “discharges associated with industrial activity?”

EPA’s answer to this question (given at 40 C.F.R. 122.26(b)) was muddled.  It clearly considered forestry to be an industrial activity, but seemed to say that stormwater discharges associated with forestry were not “discharges associated with industrial activity,” unless those discharges derived from one of the activities the 1976 silvicultural rule said would be covered.  The Ninth Circuit rejected EPA’s answer (or at least rejected an interpretation of EPA’s answer under which the 1987 amendments exempted silvicultural stormwater from regulatory coverage), and the defendants/petitioners now argue that the Ninth Circuit’s approach was in tension with Chevron v. NRDC.  Not so, say the plaintiffs; in their view, the Ninth Circuit (which did cite Chevron as its standard of review) appropriately applied a clear statute.  Those questions (to which I have not done full justice here; they’re much too complicated to fully explain in a few paragraphs) also will likely occupy much of the Court’s attentions. 

4.  The Federalism Questions:  Lurking behind these statutory construction issues are some important implications for our federalist system.  As co-blogger Blake Hudson has often pointed out, management of private and state forests remains an area of state primacy, with relatively little federal involvement.  On the other hand, water quality protection is well established as a shared federal and state prerogative.  This case puts those traditional approaches in tension.  That tension shouldn’t be overstated; in some areas, new CWA-based permitting requirements would supplement, and might not significantly add to, existing state regulatory approaches.   Much of the implementation of those new requirements would be done by the states, most of which have delegated authority to implement the NPDES program.  Nevertheless, in areas where state and local regulation of forest practices is minimal—and there are many such areas—this case could ultimately lead to significant changes in the ways forest roads are built and maintained, and those changes would occur pursuant to federal law.

So stay tuned.  The Court’s decision probably won’t be easy reading; complex statutory interpretation cases rarely are.  But it should be interesting, and it will be important.

-Dave Owen

 (image from wikimedia commons; M.O. Stevens, photographer)

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