Tuesday, December 04, 2012

As Supreme Court hears logging-roads lawsuit, EPA issues rule exempting such roads from permitting

Just as the U.S. Supreme Court was about to hear arguments about stormwater runoff from logging roads, the Environmental Protection Agency issued a rule that could short-circuit the lawsuit or lead to another round of litigation, Lawrence Hurley of Energy & Environment News reports. The EPA rule says logging roads should be exempt from Clean Water Act permitting, but the 9th Circuit Court of Appeals ruled that they should be subject to permitting, and that decision was appealed to the Supreme Court by Oregon, the timber industry and 31 state attorneys general.

The circuit court ruled in favor of the Northwest Environmental Defense Center, saying that logging-road operators should be required to apply for National Pollutant Discharge Elimination System permits. That would have broad ramifications, because states now control logging roads and the EPA doesn't require permits. Under the EPA's silvicultural rule, some activities don't require NPDES permits, which regulate point-source pollution. Stormwater runoff on logging roads is considered non-point source pollution.

The circuit judges concluded that logging runoff should not be exempted because it is channelized in ditches before being discharged into waterways and is not "natural runoff." The EPA has now created further exemptions that would keep logging runoff exempt, even if it were ruled to be point-source pollution.

Attorneys for the logging industry are trying to persuade the Supreme Court to declassify logging roads as part of an industrial activity, but the court seems "reluctant to take that route," Hurley writes. Chief Justice John Roberts asked attorneys "what impact the rulemaking had on the case. He said it would be an 'unusual situation' for the court to reach the merits when the rule has changed the legal landscape," Hurley reports. Roberts also voiced concerns about all possible outcomes, saying he would "have trouble seeing how the court could find the [appeals court] case moot or dismiss it when the possible remedies haven't been litigated." (Read more)

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