Will an EPA Rule Impact Supreme Court Review of Forest Roads Case?

August 30, 2012

Will the U.S. Environmental Protection Agency’s (EPA) recently announced proposed rule regarding forest roads impact the Supreme Court’s review of the decision by the U.S. Court of Appeals for the Ninth Circuit?  The simple answer is no.

EPA has proposed to clarify its regulations defining “stormwater discharges associated with industrial activity” by revising its reference to Standard Industrial Classification (SIC) 24 to exclude logging.  SIC codes were developed in the 1930’s as a uniform way to collect statistics.  For reasons never explained, the Department of Labor many years ago included logging in SIC 24 with various solid wood manufacturing classifications, rather than in SIC 08 with the forestry classifications.  The proposed rule does not remove the language excluding logging from the industrial activity definition which EPA put in its original 1990 stormwater regulations but which the Ninth Circuit ignored when it ruled that logging is an industrial activity.

If this rule were to become final, logging, and “immediate access roads” referred to as logging roads, would not be subject to the mandatory NPDES permit requirement under Phase 1 of the stormwater program for discharges associated with industrial activity.  However, this would not change two facts.  First, under the Ninth Circuit’s ruling, logging roads would have been classified as part of an industrial activity for the past 22 years and would have required NPDES permits during this period.  Second, these logging roads, as well as all other forest roads formerly defined as nonpoint sources by the Silvicultural Rule, remain point sources under the Ninth Circuit’s ruling.  Finally, the Supreme Court must decide whether the plaintiffs in the case filed the lawsuit at a time and in a court authorized by the Clean Water Act.  Thus, the essential issues to the case would remain active before the Supreme Court.

Even though it is not likely that the rule would have an impact on the Supreme Court proceedings, a final rule before the Supreme Court decides the case will create legal confusion, especially if the Supreme Court’s decision were to render the rulemaking unnecessary.  We must not forget that EPA’s rulemaking will be challenged directly before a federal court of appeals, a fact acknowledged by the Solicitor General, and that will most likely be filed in the Ninth Circuit.   To avoid further confusion and legal exposure, we will continue to urge the EPA to hold off on a final rulemaking until the Supreme Court renders a decision next spring.

Chip Murray, Vice President for Policy and General Counsel