Dissecting Decker: the majority opinion

As promised, here is a more thorough accounting of the Supreme Court’s opinion in Decker v. Northwest Environmental Defense Center.  The issue in this case, which I have highlighted on this blog on multiple occasions, is whether rainwater that runs off logging roads must be made subject to federal permitting under the Clean Water Act’s National Pollution Discharge Elimination System (NPDES).

Let’s start with a little background.  In 2006, Northwest Environmental Defense Center (NEDC) sued some logging companies and state officials in Oregon, alleging that channeled discharges of stormwater runoff on two logging roads in the Tillamook State Forest were in violation of the Clean Water Act (CWA) because the defendants had not obtained NPDES permits for the discharges.  NEDC argued that the discharges were covered by the CWA because they were “point source” discharges of pollutants, and that they constituted stormwater discharges “associated with industrial activity.”  The defendants countered by pointing to EPA’s Silviculture Rule and industrial stormwater regulations, both of which exempt logging road runoff from the NPDES scheme.

The district court dismissed NEDC’s suit, but the Ninth Circuit reversed.  The Ninth Circuit held that the runoff was a point source discharge, and was associated with industrial activity.  The Ninth Circuit thus determined that the CWA and EPA’s stormwater regulations required the defendants to obtain NPDES permits.  This would be tricky, to say the least, because EPA does not operate a permitting program for logging road runoff, since the agency has consistently stated that such runoff should be exempt.

PLF filed amicus briefs in the Supreme Court at both the petition stage and on the merits.  We argued that requiring NPDES permits for logging road runoff will interfere with successful state-specific best management practices that already govern the discharges.  We also demonstrated that mandating NPDES permitting could result in the EPA being responsible for permitting 264 million new discharges, placing a crushing burden on logging road owners and operators and substantially expanding the NPDES program well beyond its current bounds, without express direction from Congress.

Today’s opinion makes two preliminary points before getting to the merits.  First, the Court found that NEDC properly invoked the jurisdiction of the CWA’s citizen-suit provision, such that its suit was not barred by a separate provision of the CWA that controls challenges to EPA actions.  Second, the Court concluded that the case was not moot.  This conclusion is noteworthy because EPA created substantial confusion about the case’s justiciability when it amended its industrial stormwater regulation to more clearly exempt logging road runoff, only three days before oral argument.  The Court held that it could rule in the case because a live controversy still existed as to whether the defendants may be liable for discharges under the earlier version of EPA’s stormwater rule.  As a result, the Court declined to interpret the amended rule, but the Court decided to proceed because NEDC alleged that the defendants’ past discharges could establish liability under the CWA.

On the merits, the Court began with the proposition that the CWA generally requires individuals to secure NPDES permits for discharges of channeled stormwater runoff if such discharges are associated with industrial activity.  Otherwise, stormwater discharges are exempt from the NPDES.  NEDC contended that the stormwater discharges in this case were indeed associated with industrial activity because they resulted from logging.

The Court, however, did not believe that outdoor timber harvesting necessarily qualified as industrial activity.  Instead, the Court looked to EPA’s regulatory definition of industrial activity.  The agency stated in its amicus brief that it construes “industrial activity” to refer to “traditional industrial sources” of stormwater runoff, such as sawmills or other more fixed and permanent facilities and establishments, not outdoor timber harvesting operations.  Deferring to the agency, the Court held that EPA’s interpretation of its own regulation was permissible.  “Taken together, the regulation’s references to ‘facilities,’ ‘establishments,’ ‘manufacturing,’ ‘processing,’ and an ‘industrial plant’ leave open the rational interpretation that the regulation extends only to traditional industrial buildings such as factories and associated sites, as well as other relatively fixed facilities.”  The Court also decided to let EPA’s interpretation of its stormwater regulation stand because EPA has for years consistently taken the position that logging road discharges are exempt.

Finally, the Court emphasized that EPA’s interpretation exempting logging road runoff occurred against a backdrop of extensive state stormwater regulation.  The Court picked up on the point we made in our amicus brief—that extending federal regulation to an area that is already comprehensively covered by state-specific rules would be, as the Court said, “duplicative or counterproductive.”

Reversal of the Ninth Circuit is welcome relief for the 11 million private forest landowners in the United States, as well as the many organizations that joined PLF’s amicus brief.  Had the Ninth Circuit’s opinion been upheld, logging road owners and operators would have faced substantial costs and permitting hurdles.  And those who could not afford the permitting costs would have been put in an impossible position—continue with business as usual and run the risk of becoming a defendant in a CWA lawsuit, or stop using forest roads altogether.