Things looked like they were humming along for the federal logging roads case that has captured the attention of the timber industry, environmental groups and local officials across the West. The U.S. Supreme Court was all set to hear arguments in the case earlier this month and a wide swath of political leaders had indicated they supported the timber industry’s stance that the original Ninth Circuit Court of Appeals decision on logging roads runoff was a massive over-reach of the court’s authority.
Unfortunately, on Nov. 30, just days before the Supreme Court was set to hear arguments on the case, the U.S. Environmental Protection Agency officially released a new rule that clarifies that logging roads are not considered “point sources” of pollution. On the face of it, the new rule would seem to be good news; the rule undercuts the Ninth Circuit’s stance that logging roads are point sources of pollution.
But in reality, the EPA’s move was a huge monkeywrench in the gears for the timber industry’s effort to gain legal certainty in the issue. The timing of the rule, just days before the Supreme Court heard arguments, was also “expressly calculated” to make the court ditch the case and defer to the EPA’s judgment, according to the New York Times.
The Supreme Court has not announced whether it will drop the case, but there is a good chance it will.
The timing of the new rule seemed to irk Chief Justice John Roberts, who repeatedly asked (Deputy Solicitor General Malcolm) Stewart when he had learned of the looming change.
“Maybe in the future you could let us know when something as definite as that comes,” said Roberts, adding that the justices could have postponed the oral argument to better study the issue.
Timber leaders are already acting as if the Supreme Court will be a dead end and calling on Congress to settle the matter by passing legislation nullifying the Ninth Circuit decision. Without final word from the Supreme Court or Congress, the timber industry would be vulnerable to lawsuits from environmental groups, who could sue over every stream culvert or drainage pipe.
If there were ever a time for Congress to step in and resolve this issue once and for all, it is now. Legislation this year clearly establishing that forest roads are not point sources would preserve EPA’s 35-year interpretation of the Clean Water Act, stop the senseless litigation, and enable EPA, states and forest owners and managers nationwide to return to building on the water quality successes they have achieved together over the past three decades.
“The Environmental Protection Agency and Obama administration’s ruling in the middle of the court process is without precedent,” Geisinger said. “There might be a lot more oversight from federal agencies than we have today. We already have a good system in place.”
Legislation to overturn the Ninth Circuit decision is already in Congress, sponsored by Reps. Jamie Herrera Buetler (R-Wash.) and Kurt Schrader (D-Ore.).
Several Northwest newspapers called this month for passage of the bill.
Herrera Beutler will continue to pursue her bipartisan legislation to eliminate the threat of more stringent regulations, (said her spokesman, Casey Bowman). Considering the broad range of elected officials, labor groups and businesses that agree with her, we hope the effort succeeds.
No one is suggesting that logging operations should be allowed to dump unlimited sediment into streams and rivers. State best practices rules have been in effect on logging roads in Oregon for years.
But to require timber operations to obtain a federal permit for every culvert would be a bureaucratic nightmare, causing delays and costing money and jobs. If the high court decides not to rule, the issue will drag on for years to come as environmentalists file new lawsuits.
Congress could resolve the matter by clarifiying the Clean Water Act as it applies to logging roads. Oregon Sen. Ron Wyden, Rep. Greg Walden and Rep. Kurt Schrader are supporting efforts to do that.
The Supreme Court may now punt rather than ruling on the merits in the case…Environmental groups will respond by challenging the EPA’s new rule in court, and the legal wrangling, once again, will go on and on.
Enter Congress. If the Supreme Court does, in fact, give the case the brush-off, Congress should act quickly on very targeted legislation introduced in both the House and Senate. The companion bills enjoy bipartisan support, including that of Rep. Greg Walden, R-Ore., Rep. Kurt Schrader, D-Ore., and Sen. Ron Wyden, D-Ore. Their passage would simply provide firm legal footing for long-standing EPA policy governing logging runoff.
This legislation barely moves the needle on the controversy meter, and it would provide great relief to an important industry in Oregon and many other states. It deserves prompt passage.