On the Friday afternoon of November 30, 2012, a mere three days before the Supreme Court of the United States was to hear oral arguments in the case of Decker v. Northwest Environmental Defense Center, the EPA announced that it was revising the ambiguous regulations at the center of the legal dispute. EPA’s last-minute rule changes not only irked the Court, but may have also mooted the case.
The central legal issue in Decker is whether timber companies need an NPDES water discharge permit for surface water runoff from logging roads pursuant to §402 of the Clean Water Act. Since the 1980s, the EPA has had in place a “Silvicultural Rule” which describes both “silviculture point sources” requiring NPDES permits as well as “non-point source” activities that do not require discharge permits. The Silviculture rule listed timber harvesting and roads constructed and maintained for that purpose as non-point source activities that do not require discharge permits.
In 1990, the EPA implemented, in two phases, stormwater regulations for discharges from “industrial activities” without defining what activities fall under the industrial label. Over the years, the timber industry in the Pacific Northwest relied upon the Silvicultural Rule as the legal basis for not securing NPDES permits when constructing roads to harvest timber and manage forest properties.
Not surprisingly, environmentalists objected to this exclusion because precipitation that falls on forest roads across the region entrains sediment that eventually can end up in surface waters. A suit was brought in Oregon against officials of the Oregon Board of Forestry and individual companies. The U.S. District Court dismissed the case in 2007 on the grounds that the Silvicultural Rule exempted the activity from requiring a permit. In May 2011, the Ninth Circuit reversed, but only after the Department of Justice reversed its initial position as an amicus and conceded that the stormwater regulation was ambiguous and that the appellate court had jurisdiction to review the regulation in the context of the citizen suit challenge.
The Supreme Court granted certiorari to review the Ninth Circuit’s decision and stated two questions for consideration. The first of these goes to the jurisdiction of a federal court under the Clean Water Act. The regulations at issue were adopted more than two decades ago. Section 369 (b) of the Clean Water Act requires that challenges to a regulation or binding action of the EPA be brought within 120 days of issuance. It was only after the Justice Department reversed its original position regarding the ambiguity of the stormwater rule that the Ninth Circuit determined that the environmental plaintiffs could bring their suit and that limitations under Section 369 (b) did not bar the action.
The second question certified by the Supreme Court – whether the stormwater runoff is industrial stormwater notwithstanding EPA’s decision to the contrary – went to the merits of the Ninth Circuit’s decision. It was this question that EPA effectively mooted by announcing that it was revising its stormwater regulations to clarify that the logging roads at issue are not an “industrial activity” (a term that EPA previously had never defined) for which an NPDES permit must be sought.
What is perhaps most remarkable is the speed with which EPA acted. It announced its intention to revise its stormwater regulation in May (77 Fed. Reg. 30473, May 23, 2012), and did not actually propose a revised regulation until September (77 Fed. Reg. 53834, September 4, 2012). The speed with which EPA moved from proposing its regulation until it adopted it on November 30 – a mere 87 days – is almost unprecedented.
The Supreme Court justices were reportedly displeased that the amended regulation had been issued without warning on the Friday afternoon before the Monday argument. Chief Justice John Roberts remarked that “it’s an unusual situation for us to rule in a case where the issue has ongoing significance and that’s taken away.” He also chastised the attorney arguing for EPA as amicus curiae: “[m]aybe in the future you could let us know when something as definite as that comes. There were 875 pages on the merits briefing in this case, and if we knew that the final rule was imminent, we could have rescheduled the case for April or something along those lines.” (https://www.scotusblog.com/?p=156106). EPA’s counsel conceded that the release of a final rule on a Friday afternoon before a Monday hearing was “suboptimal.”
On January 8, 2013, the Court granted a Motion to File Supplemental Brief After Argument to allow the parties to brief the issue of whether EPA’s new stormwater regulations have rendered the case moot. The parties submitted their briefs on January 22, 2013. The government’s attorney argued that the new EPA rules did moot the suit. The environmental plaintiffs have argued that the issues are still ripe, but have asked for the case to be remanded to the Ninth Circuit in light of the new rules.
Regardless of whether the case is now moot, EPA appears to have opened a right of review for environmental plaintiffs that previously had been denied to them under the strict time limits imposed by Section 369 (b) of the Clean Water Act. Moreover, it has clearly adopted a new regulation that may be challenged should the citizen plaintiffs so choose.
Welcome to the second term of the Obama Administration.