BY MATEUSZ PERKOWSKI
Recent oral arguments before the U.S. Supreme Court were supposed to center on whether logging roads should be subject to Clean Water Act permits.
Instead, due to a last-minute regulatory change by the U.S. Environmental Protection Agency, the debate largely focused on whether the case was still relevant.
The controversy relates to a 2010 ruling by the 9th U.S. Circuit Court of Appeals, which held that runoff from logging roads that flows through ditches and culverts must be regulated as a "point source" of pollution.
For nearly 35 years prior to the ruling, the EPA had not considered such runoff as a "point source" discharge that required a Clean Water Act permit, and treated it like natural "non-point source" runoff from agricultural fields.
The 9th Circuit decision alarmed the timber industry, which fears the permitting requirement will tremendously drive up the cost of managing forests and logging.
When the Supreme Court agreed to review the case earlier this year, the industry was hopeful the 9th Circuit's ruling would be overturned similarly to some of its other controversial environmental decisions.
However, a couple days before the oral arguments on Dec. 3, the EPA announced a final rule that stated logging road runoff is not a discharge associated with industrial activity.
The revision created a new way for the agency to extinguish the need for permits.
On its face, this would seem to be a boon for timber interests, but the industry actually sees the new rule as threatening to prolong the legal battle over logging road runoff.
The new rule will likely be challenged by environmentalists as an alleged violation of the Clean Water Act, said Timothy Bishop, an attorney representing timber companies and the Oregon Department of Forestry in the case.
If the Supreme Court refuses to decide whether logging roads are subject to Clean Water Act permits, the same issue will likely wind through the federal court system for years to come, he said.
"And this court can cut through all of that by deciding this case, which the simplest way to decide this case is under the stormwater rule," Bishop said, referring to the agency's longstanding policy of not regulating runoff from logging roads, which was rejected by the 9th Circuit.
"If the court decides the case in our favor under the stormwater rule, then that will preclude a large part of the basis for the challenge to the new rule," he said.
The federal government argued that the Supreme Court should declare that the new rule has rendered the lawsuit moot, regardless of potential future challenges by environmentalists.
"I think at this point the prospect that the EPA rule would be both challenged and vacated is sufficiently speculative that it would be out of keeping with general principles of mootness for the court to go on to decide the question of what the old rule meant," said Deputy Solicitor General Malcolm Stewart.
The timing of the new rule seemed to irk Chief Justice John Roberts, who repeatedly asked Stewart when he had learned of the looming change.
"Maybe in the future you could let us know when something as definite as that comes," said Roberts, adding that the justices could have postponed the oral argument to better study the issue.
In response, Stewart apologized but said it would have been worse if the new rule was finalized after the oral argument had concluded.
The Northwest Environmental Defense Center, which filed the original lawsuit over logging road runoff, advised the Supreme Court to dismiss the case as "improvidently granted."
At this point, it would be most prudent for the Supreme Court to let questions about the new policy to be sorted out by lower courts and then revisit the issue if necessary, said Jeffrey Fisher, attorney for the environmental group.
"I can't imagine why this court would want to touch all this in the first instance, particularly without supplemental briefing, but it seems to me to make every sense to let the 9th Circuit address our arguments first," he said.