Supreme Court Action: Permits Under the Clean Water Act

The final case from yesterday’s batch of Supreme Court opinions is Decker v. Northwest Environmental Defense Center (11-338).  The case concerns the interpretation of environmental statutes and regulations as to whether logging companies require permits for storm runoff water discharged from logging roads into navigable rivers and streams.  The Clean Water Act (CWA) requires permits for discharges from “point sources.”  The Environmental Protection Agency implemented the Silvicultural Rule defining which type of categories are point sources:

"Silvicultural point source means any discernible, confined and discrete conveyance related to rock crushing, gravel washing, log sorting, or log storage facilities which are operated in connection with silvicultural activities and from which pollutants are discharged into waters of the United States. The term does not include non-point source silvicultural activities such as nursery operations, site preparation, reforestation and subsequent cultural treatment, thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage, or road construction and maintenance from which there is natural runoff." 40 CFR §122.27(b)(1).

Georgia-Pacific West has a contract with the State of Oregon to harvest timber from a state forest and uses roads to transport logs.  The Northwest Environmental Defense Center sued Georgia-Pacific under the citizen lawsuit provision of the CWA alleging that Georgia-Pacific required a runoff permit for storm water discharges from the roads it used to transport logs.  The CWA exempts the need for permits for storm water discharges except in circumstances where a discharge is “associated with industrial activity.”  Another EPA rule, the Industrial Stormwater Rule, defines that term:

“the discharge from any conveyance that is used for collecting and conveying storm water and that is directly related to manufacturing, processing or raw materials storage areas at an industrial plant. The term does not include discharges from facilities or activities excluded from the NPDES program under this part 122. For the categories of industries identified in this section, the term includes, but is not limited to, storm water discharges from . . . immediate access roads and rail lines used or traveled by carriers of raw materials, manufactured products, waste material, or by-products used or created by the facility . . . .” 40 CFR §122.26(b)(14) (2006).

The District Court dismissed NEDC’s suit for failure to state a claim, interpreting the EPA rules as not requiring a permit.  The Ninth Circuit reversed, holding that the discharges were from point sources and not exempt from the permit scheme. The Supreme Court reversed.  It considered the jurisdiction questions as a threshold for the suit and said the District Court could entertain the suit.  It also noted that the EPA issued a revised the Industrial Stormwater Rule shorty before Supreme Court oral argument in response to the Ninth Circuit’s opinion.  The Court stated that the EPA’s interpretation of the rule was reasonable, and as such it should receive deference.  The revised regulation was consistent with past iterations of the rule.  Thus the textual changes did not alter the Court’s deference to the EPA’s conclusion that a permit was not required.  The Court further noted that Oregon has its own regulatory scheme which was consistent with the EPA requirements.

Justice Kennedy delivered the opinion of the Court and was joined by Chief Justice Roberts and Justices Thomas, Ginsburg, Alito, Sotomayor, and Kagan.  Justice Scalia joined only Parts I and II the majority opinion.  He filed an opinion concurring in part and dissenting in part as well.  Chief Justice Roberts filed a concurring opinion which was joined by Justice Alito.  Justice Breyer did not take part in the case.  [MG]