Court should alter course on rainwater



For the Capital Press

Almost every American is an "environmentalist" in some respects. That is, an overwhelming number of us are rightly concerned about the dangers of excessive pollution, and appreciate that efforts are undertaken to safeguard important natural resources, such as drinking water.

But not every American is a radical environmentalist. A radical environmentalist is someone who believes that virtually any human use of natural resources must be looked upon with great suspicion, and that the government must enact and enforce restrictions on such uses at all costs.

The case of Georgia-Pacific West Inc. v. Northwest Environmental Defense Center, which the U.S. Supreme Court has been asked to hear, shines a light on the division between radical environmentalists and the rest of us.

A few years ago, the environmental group Northwest Environmental Defense Center brought a lawsuit, in Oregon, under the theory that rainwater running off forest roads should be regulated as industrial pollution under the federal Clean Water Act. The goal, no doubt, was to force forestland owners, many of whom are individuals or family businesses, to go through a costly federal permitting process that would discourage them from harvesting trees.

Tellingly, the Environmental Protection Agency does not operate a permitting program for forest road runoff, because that agency -- our nation's chief environmental cop -- has consistently concluded that rainwater running off logging roads does not constitute industrial pollution. Yet the radical environmentalists pushed their point in court because they know that such a permitting system would be expensive if put in place. And their efforts bore fruit at the 9th Circuit, which issued a ruling adopting this extreme view of rainwater as "pollution."

The Supreme Court has observed that similar permits can cost over $200,000 and can sometimes require more than two years to process. Considering that there are millions of miles of forest roads that might need to be covered under federal permitting if NEDC's theory is not rejected, the timber industry could be stopped in its tracks.

NEDC's lawsuit bleeds radical environmentalism. Forest road runoff is currently managed under state-tailored best management practices, with EPA oversight. Adding another layer of regulation would provide only negligible environmental benefits, if any, but it could lead to huge economic losses.

This is where the "at all costs" problem comes in. Those who sued to force the federal government to institute a new and unnecessary regulatory program don't seem to care how many jobs are lost, or how much the prices of consumer products rise, as a result of their crusade.

The good news is the Supreme Court recently asked the U.S. solicitor general to provide a brief expressing the federal government's views on the Georgia-Pacific West case. This is an encouraging sign, giving hope the 9th Circuit's decision may be overruled, sparing the timber industry -- and our economy -- some unnecessary pain.

But no matter how the litigation turns out, it should remind us that radical environmentalism comes at a price, even if some among us refuse to acknowledge it.

Daniel Himebaugh is an attorney with Pacific Legal Foundation in Bellevue, Wash.

He represented over a dozen timber industry, conservation, and educational organizations in filing a friend-of-the-court brief urging the U.S. Supreme Court to review the Georgia-Pacific West case.

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