U. S. Supreme Court Rules Logging Road Runoff Not Subject To NPDES Permitting

    EPA properly interpreted its regulations when it concluded that NPDES permits are not required for runoff from logging roads, even if the storm water runs through a man-made ditch, the U.S. Supreme Court decided. But some justices questioned whether courts should be deferring to administrative agencies’ interpretations of their own rules, dicta that will doubtless encourage many attorneys to make exactly that argument. 

The Northwestern Environmental Defense Center had challenged the state of Oregon’s decision to allow logging companies to rely on best management practices, rather than permits, to control storm water runoff. Oregon’s position was based on its, and EPA’s, interpretation of the “Silvicultural Rule.”  At the time the lawsuit was filed, the Silvicultural Rule listed certain types of forest industry activities that require NPDES permits, but allowed an exemption for “road construction and maintenance from which there is natural runoff.”  40 C.F.R. §122.27(b)(1).  The NEDC challenged EPA’s interpretation of the Rule, arguing (among other things) that runoff in manmade channels was not natural runoff.

The Court initially addressed, and resolved in the NEDC’s favor, questions relating to the whether the NEDC properly brought its lawsuit under 33 U.S. §1365 (citizen suits) rather than §1369(b) (appeals of agency rules), and whether EPA’s revisions to the Silvicultural Rule in November 2012, a few days before oral argument, had mooted the NEDC’s suit. After giving the NEDC these two preliminary procedural wins, the Court agreed with EPA that it was reasonable to exempt logging road runoff from NPDES permitting. The Court noted that logging is the harvesting of raw material rather than manufacturing, and that EPA’s interpretation had not changed from prior practice and was a post hoc justification in response to litigation.

            The decision by the Supreme Court was not unexpected.  What is intriguing are statements by Chief Justice Roberts and Justices Alito and Scalia that it is time to reconsider judicial deference to agencies’ interpretations of their own rules.  Justice Scalia noted that under Chevron U.S.A., Inc. v. Natural Resource Defense Counsel, Inc., 467 U.S. 837 (1984) the courts defer to the agency interpretations of legislation, which gives Congress an incentive to clearly explain what it intends in its enactments. In contrast, giving deference to agencies to interpret their own regulations under Auer v. Robbins, 519 U.S. 452 (1997) encourages vague regulations that leave the promulgating agency with the greatest latitude to interpret the rule as it sees fit.  Given Justice Thomas’ similar opinion expressed in another case, it appears that at least four justices are willing to reconsider Auer.  We’re certain to see petitions soon asking the Court to do just that.

Decker v. Northwestern Environmental Defense Center, No. 11-338

Georgia-Pacific West, Inc. v. Northwest Environmental Defense Center, No. 11-347