Will Justice Scalia hear a “green” amen?

As recounted on this blog yesterday, the Supreme Court has ruled, consistent with EPA’s position but contrary to the environmental community, that “channelized” stormwater runoff from logging roads does not require a Clean Water Act permit.  The decision in Decker v. Northwest Environmental Defense Center was 7 to 1 (Justice Breyer did not participate).  Can you guess who that lone hold-out justice was, fighting for our nation’s waterways, beleaguered salmonid populations, and greenies everywhere?  None other than Justice Scalia.  Yes, the justice that many on the green Left love to hate.

To be fair, the reasons for Justice Scalia’s “no” vote have nothing to do with a nascent green sensitivity, and have everything to do with his nascent suspicion of judicial deference to administrative interpretations of agency regulations.  The majority opinion’s foundation is EPA’s interpretation of its stormwater regulations to exempt forest road runoff.  Yet, the majority opinion recognizes that EPA’s interpretation is not the only plausible reading (and perhaps not the best reading).  But, under long-standing precedent, the Court must defer to an agency’s interpretation of its own regulation unless “plainly erroneous,” which EPA’s wasn’t.  Thus, EPA’s interpretation carried the day.

Justice Scalia, however, took sharp issue with this principle of deference to administrative interpretation.  He expressed strong concern that the principle effectively makes an agency both a lawmaker and a law interpreter.  That result should raise alarm bells, reasoned Justice Scalia, because it “violate[s] a fundamental principle of separation of powers—that the power to write a law and the power to interpret it cannot rest in the same hands.”  It is the agency’s job to make its regulations effective through rulemaking, reasoned the justice, but it’s the judiciary’s job “to determine the fair meaning of the rule.”  And Justice Scalia was of the opinion that the fair meaning of EPA’s stormwater and point source regulations is to include channelized runoff from forest roads.

So, bottom line is that Justice Scalia would have ruled in favor of the environmentalists and a result whereby EPA would have to regulate thousands upon thousands of at present unregulated stormwater discharges.  Will Justice Scalia hear an “amen” from the environmental community?  I rather doubt it.

 

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