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March 21, 2013
Supreme Court rules on logging road discharges

In a nearly unanimous opinion covering two consolidated cases, the U.S. Supreme Court upheld EPA’s interpretation of its own industrial stormwater rule to exempt stormwater discharges from logging roads from permitting requirements under the National Pollutant Discharge Elimination System (NPDES). 

Eight justices supported EPA’s interpretation.  Justice Scalia also concurred while dissenting from other elements of the decision.  Justice Breyer took no part in the consideration of the case or the decision. 

Oregon’s program

The ruling appears to be a major victory for the logging industry; however, there may be uncertainty about how the ruling will apply in states other than Oregon, the only state specifically mentioned in the Supreme Court’s opinion.  In writing the opinion, Justice Kennedy notes that EPA’s logging road exemption “exists against a background of state regulation with respect to stormwater runoff from logging roads.” 

Specifically, Kennedy notes that Oregon has undertaken extensive efforts, including required filtration, to ensure that sediments in stormwater runoff from logging roads do not endanger aquatic organisms.  Moreover, Oregon compels logging companies to cease operations that cause visible increases in water turbidity. 

Kennedy also notes that the “broad discretion” the Clean Water Act (CWA) gives to the EPA allowed the Agency to conclude that, given a strong state program, NPDES permitting for logging roads would be “duplicative and counterproductive.”  Kennedy does not specifically say that the situation may differ in states that do not address runoff from logging roads as vigorously as Oregon.  However, opponents of the exemption can conceivably point to Kennedy’s language to argue that NPDES permitting would not be duplicative and counterproductive in states that lack the kinds of controls required by Oregon.

Industrial activity

Apart from the issue of Oregon’s independent regulations, the substance of the legal argument is based in the term industrial activity as it is included in the CWA and interpreted by the EPA. 

Under the Act, stormwater discharges are exempted from permitting unless they are associated with industrial activity, a term the CWA does not define.  In a series of rules, the EPA limited the requirement to obtain a permit to logging that involves “any discernible, confined, and discrete conveyance related to rock crushing, gravel washing, log sorting, or log storage facilities.” 

The Northwest Environment Defense Center (NEDC) petitioned a U.S. district court to invalidate this narrow interpretation of industrial activity, stating that modern logging is a large-scale, highly mechanized enterprise, using sophisticated harvesting machines weighing up to 20 tons, which, therefore, cannot be excluded from the definition of industrial activity.  The district court denied NEDC’s petition, but the U.S. Court of Appeals for the 9th Circuit overruled, sided with the NEDC, and paved the way for the Supreme Court’s involvement.

Traditional industrial buildings

In his discussion, Kennedy finds merit in EPA’s assertion that NPDES permitting should not be applied to temporary, outdoor logging installations.  Instead, industrial activities are more properly found in industrial plants that are more permanent than outdoor timber-harvesting operations.  Kennedy writes:

“Taken together, the [industrial stormwater 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.”

Kennedy also found that the EPA interpretation does not change any prior practice and that the Agency has been consistent in its view that the types of discharges considered in the case do not require NPDES permitting.  That consistency also weighed in favor of the Agency’s position.

Click here for the Supreme Court’s opinion in Decker, Oregon State Forester, et al. v. NEDC and Georgia-Pacific West, Inc., et al. v. NEDC

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