Is Rain Water An Industrial Pollutant?

We have written repeatedly about the EPA’s war on energy and, more generally, on economic growth. But a case that may soon make its way to the Supreme Court is, critics argue, even more extreme than anything mandated by the Agency. The case is Georgia-Pacific West, Inc. et al. v. Northwest Environmental Defense Center. The 9th Circuit Court of Appeals ruled, reversing more than 35 years of practice and statutory interpretation, that runoff of rain water from forest roads that passes through one or more pipes or culverts constitutes point source pollution that must be permitted through the EPA’s NPDES program. 640 F.3d 1063. If this ruling is upheld, the EPA will be charged with regulating the runoff of uncontaminated rain water from vast areas of public and private land. It is not clear how many permits would need to be applied for and issued, but the number may be in the millions.

The defendants in the original action have now petitioned for certiorari in the Supreme Court, and the court’s response to that petition is expected on Monday. SCOTUS Blog lists the case as one of the “Petitions We’re Watching,” and you can read the 9th Circuit’s opinion and the petition for certiorari here. The petition states the issue presented as follows:

Since the passage of the Clean Water Act, the Environmental Protection Agency has considered runoff of rain from forest roads–whether channeled or not–to fall outside the scope of its National Pollutant Discharge Elimination System (“NPDES”) and thus not to require a permit as a point source discharge of pollutants. Under a rule first promulgated in 1976, EPA has consistently defined as nonpoint source activities forest road construction and maintenance from which natural runoff results. And in regulating storm water discharges under 1987 amendments to the Act, EPA again expressly excluded runoff from forest roads. In consequence, forest road runoff long has been regulated as a nonpoint source using best management practices, like those imposed by the State of Oregon on the roads at issue here. EPA’s consistent interpretation of more than 35 years has survived proposed regulatory revision and legal challenge, and repeatedly has been endorsed by the United States in briefs and agency publications.

The 9th Circuit decision conflicts with a ruling by the 8th Circuit Court of Appeals in Newton County Wildlife Association v. Rogers, 141 F.3d 803. In a decision written by my former partner Jim Loken, the 8th Circuit held that the claim that “culverts and other discrete sources and conveyances” of runoff associated with logging roads constitute point sources of pollution was “without merit.” Twenty-six states have joined with the petitioners in asking the Supreme Court to take the case and overturn the 9th Circuit decision.

The practical concern expressed by the petitioners and by the states is that the 9th Circuit decision, if it stands, could bring all or most logging in the United States to a halt, potentially for a decade or more. Not only will the permitting process drag on for years, but issuance of an NPDES permit is an agency action that can be–and most certainly will be–challenged by lawsuits filed by left-wing activists. Jim Petersen writes in the Washington Times:

The economic impact of this case is so significant that the attorneys general in 26 states have filed friend-of-the-court briefs urging the Supreme Court to review the decision, as have the Pacific Legal Foundation, famous for its private property rights advocacy, and several forest industry groups that represent forest landowners large and small. Sen. Ron Wyden, Oregon Democrat, also has weighed in, declaring that letting the court’s decision stand “would shut down forestry on private, state and tribal lands” wherever it is applied. …

The new administrative burdens the 9th Circuit decision puts on landowners and federal and state government is staggering. The U.S. Forest Service reports there are about 378,000 road miles in our national forests and that it will need about 400,000 permits. By the most conservative estimate, adding in state and private forests nearly doubles that number. Other estimates place the total well into the millions. Simply obtaining the Forest Service’s permits will take 10 years.

The economic consequences of devastating the logging industry, and other industries that depend on wood products, are incalculable. We are living in an extraordinary time, in which the nation’s political class frequently makes war on our economy. No wonder economic recovery is so difficult! The Supreme Court can solve this particular problem if it grants the motion for certiorari tomorrow and reverses the 9th Circuit’s ruling, but more broadly, we need to drastically reform, and limit the powers of, our political class.

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