U.S. Supreme Court Rules That Logging Roads Do Not Require NPDES Permits; Scalia Dissent Suggests Major Change Afoot in Administrative Law
On March 20, the U.S. Supreme Court
ruled that the discharge of channeled stormwater runoff from logging roads is not a "point source," and logging operators therefore are not required to obtain a permit from the Environmental Protection Agency
("EPA") under the Clean Water Act ("CWA"). Although important to a key Northwest industry, the decision is not unexpected. Under its "Silviculture Rule" (40 C.F.R. Sec. 122.27(b)(1)), an administrative interpretation of the "point source" requirement, EPA has long held that stormwater runoff from logging roads is not a point source, and timber harvesters are therefore not required to obtain an NPDES
permit before constructing roads. The decision, Decker v. Northwest Environmental Defense Center,
also follows a pattern that has become almost routine in recent years -- the Supreme Court reversing the Ninth Circuit in an environmental case where the Ninth Circuit embraces a novel reading of the relevant statute. In fact, as previously noted here,
the Supreme Court this term has already reversed a Ninth Circuit decision on the "point source" question in a case with strong implications for operators of dams, flood control facilities, canals, and other kinds of water works.
More surprising are strong suggestions in the concurring and dissenting opinions that the Court's conservative wing may be ready to re-examine one of the foundational principle of administrative law -- that an agency's interpretation of its own regulation is entitled to deference from the courts. Justice Scalia's dissent in Decker
attacks this rule as an affront to "a fundamental principle of separation of powers -- that the power to write a law and the power to interpret it cannot rest in the same hands." Stepping past the EPA's interpretation, Justice Scalia sides with the environmental plaintiffs (and the Ninth Circuit), concluding that runoff from logging roads that is channeled into ditches and culverts is a "point source" under the statutory definition, which includes any "pipe, ditch, channel, tunnel, [and] conduit."
In a short concurring opinion, Chief Justice Roberts and Justice Alito suggest that "it may be appropriate to reconsider" the principle that an agency's interpretation of its own regulation is entitled to deference. But, they conclude, Decker
is not the appropriate case. Thus, three of the court's conservative wing have signaled they are ready to reconsider the rule in the appropriate case. It is likely that the fourth conservative, Justice Thomas, would align with them, leaving the fate of the rule in the hands of Justice Kennedy, who tends to be the swing justice in environmental and administrative cases.
In addition to casting doubt on the continuing validity of the interpretative rules courts routinely apply to administrative regulations, it is doubtful that the Court's decision will permanently resolve the litigation concerning whether logging roads are "point sources" under the CWA. This is so because, just three days before the oral argument in Decker,
the EPA issued a revised version of its Industrial Stormwater Rule
clarifying in response to the Ninth Circuit's decision that only certain silvicultural activites, not including logging roads, are "point sources" requiring an NPDES permit. Accordingly, the Supreme Court's opinion addresses only the regulations in place prior to the new Industrial Stormwater Rule. It is likely that the environmental plaintiffs, perhaps encouraged by Justice Scalia's dissent, will challenge the new rule as inconsistent with the CWA's statutory "point source" definition.
One interesting aside: Justice Scalia's rather surprising alignment with the Ninth Circuit and environmental plaintiffs in this case points up the difficulty of categorizing Supreme Court justices and their opinions on an ideological spectrum. The difficulty is underscored by the contrasting conclusions of political scientists who have attempted to categorize Supreme Court justices, as recently summarized in the Washington Post's "The Fix" blog, here
If you have any questions about the Supreme Court's opinion, the CWA, NPDES permitting, or EPA's strormwater regulations, please contact a member of GTH's Environment & Natural Resources
practice group. This practice groups is consistently recognized as among the best, both nationally and in the Pacific Northwest.