EPA weighs in on logging roads case, but more steps remain

2012-05-25 Ashley Bach

Good news this week on the Ninth Circuit Court of Appeals decision on logging roads, but it’s likely just another chapter in a longer battle.

The U.S. Environmental Protection Agency just announced it will regulate runoff from logging roads with state-managed best management pratices instead of the heavy-handed federal regulation suggested by the Ninth Circuit decision. The court’s decision last year (which we last wrote about here) would have meant all logging roads would have been treated as industrial sites. Every stream culvert and drainage ditch on hundreds of thousands of miles of logging roads would require a permit.

The EPA’s decision to essentially put aside the Ninth Circuit decision is a positive step, but without stronger action, it will only lead to lawsuits from environmental groups, timber leaders say.

Scott Horngren, attorney for Oregon’s American Forest Resource Council:

“It doesn’t keep the dogs of litigation at bay,” he said.

…It’s likely (environmental) groups will file a legal complaint against the EPA’s new exemption as soon as it becomes final, he said.

What timber leaders would prefer is for the U.S. Supreme Court to take up the Ninth Circuit case, as it signaled it would, because that would provide legal certainty. But absent that, Congress should make permanent a temporary moratorium approved last year on the Ninth Circuit decision.

“While there is broad agreement on the policy objective, we need legal certainty to make it stick,” (said David Tenny, president of the National Alliance of Forest Owners.)  “We know litigators lie in wait to bring anything EPA does back to the Ninth Circuit as quickly as possible, because the court has little regard for Supreme Court precedent or EPA’s longstanding policy. Last year Congress and the Administration provided short-term relief through bipartisan legislation preventing the Ninth Circuit ruling from taking effect. If the Supreme Court reviews the case, Congress and the Administration must extend this legislation for another year. If the High Court does not review the case, they must make it permanent. That is the only way to provide certainty against Ninth Circuit overreaching.”

According to Tenny, keeping the Ninth Circuit decision intact is clearly not an option.

“If allowed to stand the Ninth Circuit approach will cost hundreds of millions of dollars, kill thousands of jobs and invite protracted litigation over permit technicalities without any corresponding environmental benefit. Federal, state, tribal and private resource professionals agree that complicated and costly federal permits will not make our rivers and streams any cleaner,”