What to Expect in the Logging Roads Case

Cross-posted from Legal Planet. This coming Monday, Dec. 3, the U.S. Supreme Court will hear oral argument in the logging roads case. The case involves two consolidated petitions, Decker v. Northwest Environmental Defense Center and Georgia Pacific v. Northwest Environmental Defense Center , both challenging the same decision of the Ninth Circuit, Northwest Environmental Defense Center v. Brown, 640 F.3d 1063 (9th Cir. 2011). (Decker is brought on behalf of the state of Oregon, which owns the land and roads in question, Georgia Pacific on behalf of timber operators who hold logging rights on the land.) The narrow issue is whether the Ninth Circuit was right to hold that NPDES permits were required for stormwater runoff from Oregon logging roads channeled through ditches and conduits to navigable waters. The broader issues are the extent to which EPA has the discretion to narrow the scope of "point sources" subject to federal regulation, and the availability of citizen suits to enforce the CWA. I think it's likely the Ninth Circuit decision will be reversed, but I expect a narrow decision. With the recusal of Justice Breyer (whose brother sat by designation on the Ninth Circuit panel), the best environmental interests can reasonably hope for is a 4-4 deadlock if they can bring Justice Kennedy around. I don't think that will happen. (To the extent that Justice Kennedy deserves his reputation for sensitivity to the views of the states, note that 31 states have signed on to an amicus brief in support of petitioners and of course Oregon is a petitioner.) Petitioners make three arguments: first, that runoff from ditches and culverts associated with logging roads is not point source pollution; second, that even if it is not all point source pollution requires an NPDES permit; and third, that the lower courts did not have jurisdiction to hear this suit. My guess is that they will win on the second argument, lose on the third, and that the court may duck the first. If I'm right, the Court's decision won't radically undermine the CWA, but it will leave EPA with a great deal of discretion to decide what to do about logging road pollution. Whatever the outcome in the Supreme Court, it's crucial that EPA take its mission of restoring and maintaining the integrity of the nation's waters seriously, and recognize the importance of dealing with logging roads and other "unconventional" pollution sources to achieving that mission.