A Strong Show of Support in Decker v NEDC

September 13, 2012 All amicus briefs supporting the petitioners in Decker v. NEDC have now been filed with the Supreme Court and provide strong support from a broad array of interests. All agreeing that the May 2011 forest roads decision from the U.S. Court of Appeals for the Ninth Circuit was wrong. The court ruled that forest roads are “point sources” of water pollution requiring industrial discharge (NPDES) permits typically applied to factories and sewage plants under the Clean Water Act (CWA).  The briefs are available on the SCOTUS blog.

• NAFO led a group of 14 forestry associations on a brief supporting the legal arguments of the petitioners, emphasizing that the Ninth Circuit erred in its May 2011 decision by not giving deference to the U.S. Environmental Protection Agency to administer the CWA and that forest roads should remain nonpoint sources under the regulation.
• Two other forest industry briefs described the negative economic impacts of NPDES permit requirements on private and public lands.
• A group of forestry professionals, professors and two forestry schools, led by the Society of American Foresters, submitted a brief explaining the effectiveness and use of best management practices (BMPs) for the Court.
• Three briefs–one led by the Arkansas Attorney general joined by the attorneys general from 30 other states, one led by the National Association of Governors and the other by the Association of Oregon Counties, pointed out the negative economic impacts on state, county and local governments.
• The Ruffed Grouse Society filed a brief identifying the negative effects on habitat conservation from increased costs of forest management.
• A variety of other interests were represented on six other briefs, including one by eight law professors on the importance of deference to agency interpretations in appropriate situations and briefs by American Farm Bureau Federation, Chamber of Commerce of the U.S., the National Association of Homebuilders and National Association of Manufacturers, National Federation of Independent Business and the Mountain States Legal Foundation.
• The U.S. Solicitor General also filed a brief supporting the petitioners, and again agreeing that the Ninth Circuit ruling was wrong as he did in his recommendation last May that the Supreme Court not review the decision.

As expected, the Solicitor General argued that the case was properly filed under the Clean Water Act, contrary to the petitioners’ position.  He urged the Supreme Court to reverse the Ninth Circuit, placing the strongest emphasis on reversing the finding that logging is an industrial activity subject to mandatory NPDES permits under the Clean Water Act.

We await the NEDC brief due mid-October with amici following.

Chip Murray, Vice President for Policy and General Counsel