Supreme Court to Logging Industry and EPA: You’re Right – Permits Not Required for Stormwater Runoff

“While EPA got the result that it wanted here, the decision may come back to haunt it in the long run…” (Foley Hoag)

Environmental regulation, like politics, makes strange bedfellows… In late March, the US Supreme Court handed a victory to both the country’s logging industry and the federal agency charged with protecting the environment against industrial abuse (among other things). From attorney Victoria Hollinger at Morgan Lewis:

“On March 20, the U.S. Supreme Court ruled … that discharges of stormwater from logging roads are exempt from the Clean Water Act’s National Pollutant Discharge Elimination System (NPDES) permitting scheme and giving deference to the Environmental Protection Agency’s (EPA’s) interpretation of its own regulations…”

But the victory could turn out to be hollow for the EPA – and other federal agencies – explains Seth Jaffe of law firm Foley Hoag:

“The decision was largely based on what is commonly known as Auer deference, the rule that courts will defer to an agency’s interpretation of its own regulations unless that interpretation is ‘plainly erroneous or inconsistent with the regulation.’ … Justice Scalia, at his most curmudgeonly, dissented on the ground that Auer should be overturned because it grants too much authority to agencies… To Justice Scalia … allowing agencies to interpret their own regulations has the dangerous result of concentrating both the writing and interpretation function in one branch of government.”

How did the timber industry fare? Three takeaways:

1. Less paperwork:

“…the Supreme Court ruling brings a welcome respite from the uncertainty created by the 2010 Ninth Circuit decision for public and private landowners and operators. If sustained, the Ninth Circuit ruling could have resulted in huge numbers of NPDES permits being required for the vast networks of forest roads that exist nationwide that are used in whole or part for logging and other forestry practices, at least until such time as corrective legislation might be enacted.” (Perkins Coie)

2. Same amount of regulation:

“[I]t is important to note that the Court’s ruling does not free logging road stormwater runoff from regulation, even under the CWA… [D]ischarges from logging roads are a Phase II source, meaning that, although NPDES permits are not required, EPA continues to have regulatory authority over such discharges. As discussed in the preamble to the Industrial Stormwater Rule amendment, EPA continues to review water quality impacts and consider its regulatory options under the Phase II program. Accordingly, EPA could decide to adopt additional Phase II regulations to address logging roads in the future.” (Pillsbury)

3. More environmental challenges:

“What does this decision mean for the timber industry going forward? Well, certainly the industry won an important battle, but it is likely to be one of many in a war that will continue. The [Northwest Environmental Defense Center] has announced it will take these fights to the EPA, which appears to have the decision making authority going forward. Look for the environmental groups to put increasing pressure on EPA and state forestry agencies as they try to do what they were not able to do through the courts, i.e., get new regulations in place and further tighten those that already exist.” (Davis Wright Tremaine)

The updates:

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