U.S. Supreme Court may punt on Oregon logging road pollution case

U.S. Supreme Court may punt on Oregon logging road pollution case

By Scott Learn, The Oregonian 
on December 03, 2012 at 5:43 PM, updated December 03, 2012 at 9:31 PM

Ross William Hamilton, The Oregonian

The U.S. Supreme Court may decide to punt on an Oregon logging road pollution case that has already bounced through the federal courts since 2006, justices indicated today, a move that could spawn years of additional litigation. 
The justices' comments came after the Environmental Protection Agency issued a new rule Friday clarifying that polluted run-off from logging roads shouldn't be treated like "point source" run-off from factories and feedlots under the Clean Water Act. 

EPA's new rule was intended to be timber-industry friendly, directly contradicting a 2010 decision by the 9th Circuit Court of Appeals that the Supreme Court had decided to review. 

Instead, the change could end up prompting the court to decline to judge the case, leaving the 9th Circuit's decision in place for now or prompting a second round of lawsuits over the new rule. 

EPA's 11th-hour rule change "surprised" the justices, Chief Justice John Roberts said. Instead of discussing the substance of the case during oral arguments today, the justices focused on whether or not they should even consider it. 

Timber industry officials nationwide are hoping for a clear win in the Supreme Court. The underlying lawsuit says EPA is incorrectly interpreting the text of the Clean Water Act, as passed by Congress, so an EPA rule change may not resolve the legal issue. 

The 9th Circuit concluded that the text of the Clean Water Act indicates that loggers in western states, even on private lands, need stormwater permits for active logging roads that drain to streams through pipes, ditches and culverts. 

Timber groups say permits would stall logging, create regulatory chaos and foment a spate of lawsuits from environmental groups. State laws, including Oregon's Forest Practices Act, already require best management practices for logging roads, they note. 

The Portland-based Northwest Environmental Defense Center, which brought the original lawsuit in 2006, says permits would prompt better tracking of pollution and more road improvements. Sediment runoff from logging roads can harm salmon listed under the Endangered Species Act and other fish. 

Attorney Timothy Bishop, speaking for the timber industry and the state of Oregon, spent most of his time Monday arguing that the court should still review the case. 

"What we would like to do is to get sorted out once and for all here an argument that otherwise would drag through the courts for the next five or six years," he said, according to the court's transcript. 

Jeffrey Fisher, representing NEDC, said the justices should dismiss the case, deferring it to lower courts to study the issues raised by the new rule. 

The Supreme Court may signal soon how it intends to proceed. If it decides to consider the case, a decision might come by next spring. 

Meantime, Congress could prevent future lawsuits by amending the Clean Water Act to make it clear that logging roads don't require permits. U.S. Sen. Ron Wyden, D-Oregon, has been among those favoring that approach. 

-- Scott Learn; Twitter: @slearn1