Roads Case at Supreme Court Enters Regulatory/Judicial Quagmire

Maybe it’s time for the third branch to step in and winch this issue out of the muck. Here’s a link.

Also, I find it interesting the Congress asked for an objections rule last year which hasn’t been successful at making it through the rulemaking process.. yet this one was relatively quick.

Here are a few paragraphs on that aspect from Greenwire here (the whole article is worth a read if you have a subscription):

It’s not often that Chief Justice John Roberts is caught by surprise, but he expressed shock yesterday at how quickly U.S. EPA issued a rule that is likely to have a major impact on how a Supreme Court case is decided.

An exchange between the chief justice and federal government lawyer Malcolm Stewart over the administration’s uncharacteristic speediness in drafting and approving the rule cast a spotlight on the murky world of administrative rulemaking. Critics often say it takes much too long for rules to be approved, except in cases where political officials in the White House step in and speed things up.

The court debated in some detail whether the rule, which says logging roads should be exempt from Clean Water Act permitting, means a 9th U.S. Circuit Court of Appeals ruling finding the opposite should be vacated or whether the case should be dismissed altogether, which would leave the appeals court ruling intact (Greenwire, Dec. 3).

The fact that EPA was planning a rule to address the 9th Circuit decision was known to the justices. In fact, the Obama administration had asked the court not to take up the case back in May on the grounds that EPA was planning to issue a rule (E&ENews PM, May 24).

In a later briefing in the case, in which the administration ended up siding with industry groups and states that wanted the appeals court ruling reversed, the government made it clear it was moving forward with its planned rule.

But what seemed to irk the chief justice was that he didn’t know EPA sent the rule to the White House for approval in November, a move that was reported in Greenwire at the time (Greenwire, Nov. 9).

The government lawyer conceded that the stormwater runoff rule “happened more quickly than it usually does” but insisted it was intended to make it easier for the court to decide the case.

“Obviously, it’s suboptimal for the new rule to be issued the Friday before oral argument,” Stewart said. “But it would have been even worse, I think, from the standpoint of the parties’ and the court’s
decisionmaking processes if the rule had been issued a week or two after the court heard oral argument.”

Once we are successful with the People’s Database for the Forest Service, we could start a People’s Database for Federal Rulemaking. This one would have the dates into and out of all agencies for clearance, written comments by clearing agencies and responses by the proposing agency, all open for public review.

7 thoughts on “Roads Case at Supreme Court Enters Regulatory/Judicial Quagmire”

  1. FWIW, EPA apparently did not agree with SAF’s formal comments on the proposed rule, which stated that SAF “strongly recommends” that EPA postpone its final rulemaking until the Supreme Court issues a ruling.

    • Here’s another story..

      A last-minute and unexpected change in government rules over a key environmental dispute prompted uncertainty and consternation at the Supreme Court on Monday, with justices chastising the Obama administration over its policy tactics.

      Final rules issued by the Environmental Protection Agency on Friday exempted logging road runoff from storm water permit requirements, saying timber firms may continue to use “best management practices” that suit local conditions.

      The change came just ahead of Monday’s oral arguments on one of two cases this week dealing with the financial and health effects of storm water drainage.

      “Maybe in the future you could let us know when something as definite as that comes” at the last minute, Chief Justice John Roberts told the Justice Department’s lawyer.

      Gosh, it would be fun to FOIA the discussions about clearing this document? between the White House, EPA and DOJ? I bet they’re protected by “attorney-client privilege,” though. Such a loss to those of us out here in the cheap seats.

      • JZ – here’s the link.

        Also non-members can always link and see what SAF is doing on policy here.

        Matthew, I apologize for not being able to make these quotes line up properly. They look fine on the “edit comment” screen and then have spaces in the one as published. Perhaps because the horizontal space is narrower in a reply?

        While I had generally thought of this as a private lands issue, I have always been concerned over what is a “logging” road. This couple of paragraphs in the SAF letter gets at it.

        The definition of a forest road has not been articulated to date, and the published NOI does not resolve this issue. Articulation of what constitutes a forest road will lead to disputes about jurisdictional
        boundaries and ownership. Roads owned by the federal government traverse private and state and local
        government property with right-of-way agreements between users and vice versa. Though some forest
        roads are accessed infrequently, forest roads do not serve the singular purpose of providing access to
        forest stands for timber harvest operations. These roads also provide access to forest stands and allow
        foresters to do fire risk mitigation projects, plant new forest stands, and conduct wildlife habitat enhancement projects. Additionally, forest roads also provide daily access to property, recreation opportunities, and some forest roads serve as daily thoroughfares for area residents in rural areas; some even carry children to local schools. Disputes that stem from disagreements over responsibility for maintenance and monitoring will require EPA and court intervention to mediate these issues while adding to administrative cost of this program.

        EPA acknowledges the network of forest roads on federal lands in the NOI, but it does not address the problems that inventorying federal forest roads will present. The US Forest Service and Bureau of Land Management readily admit that not all forest roads on federal lands are catalogued. Given the 100 years of forest management in the United States, the road inventorying projects that occur during forest management activities and the Forest Legacy Road program will not capture all of the roads that have been constructed and may still be in use on federal lands. Depending on the definition of a forest road or logging road in the EPA regulatory plan, the miles of undocumented roads on federal lands may be difficult to resolve and result in unanticipated costs to federal land management agencies in an effort to comply with the new EPA regulatory scheme.

  2. So I thought I would find the rule, and look at the response to comments to see what their argument was about postponing the rulemaking.
    Unfortunately, I couldn’t locate it readily on the EPA website. Hopefully someone out there can find it readily.

  3. I would think that non-maintenance of roads, including plugged culverts, would cause more erosion than the road maintenance that comes with a timber sale contract. In fact, roads must be restored to like-new function, including waterbars and rolling dips that might be currently missing. There has been no road maintenance in my project area for several decades, now.

  4. Seems to track right in line with our recent discussions of transparency and access to information eh? This cause (transparency) might be one that all of us (even David) can agree on?


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