Supreme Court throws out ruling classifying logging road runoff as industrial pollution

Here’s a news story…

Here’s the first sentence…

The Supreme Court on Wednesday sided with timber interests in a dispute over the regulation of runoff from logging roads in western forests.

It also sided with EPA in a D administration, who had just shoved a stick in their eye by issuing a surprise regulation on the eve of the Supreme Court taking the case… Just sayin’

But this is one of those cases.. what is the point here? More regulatory paperwork? Or is there some specific issue that relates to BMP’s not working? If so, what is it? Wouldn’t it be cheaper to have a meeting (open to the public) to discuss the specific water quality concerns, than to spend all the bucks to take the case to the Supreme Court? Unless folks just want to do it for the glory.. but it’s not glorious to lose, or is it?

Justice Scalia in his dissenting opinion agreed that the discharges from forest roads, aside from those four activities that have always required a permit gravel crushing etc., should not require a permit or that logging be classified as an industrial activity, but he did not like that the Court was asked to determine the intent of the EPA in their rule saying, “It is time for us to presume (to coin a phrase) that an agency says in a rule what it means, and means in a rule what it says there.”

Could someone explain why courts should determine what EPA meant by their rule? Or is it more complex than that?

Sometimes I think we need an Extension Service-like group to explain all these legal issues to the public. Maybe some law school will volunteer to run one as a pro bono effort?

Oh, and I guess The Northwest Environmental Defense Center filed a challenge to the new EPA rule on January 24th in the US Ninth Circuit. Is that the about the same thing? It seems very confusing.

Finally, I should add that I am a proud member of, and a volunteer with, the Society of American Foresters, who filed an amicus brief in this case.
But they were only one among many notable groups who did..
Here’s a link to see them all.

Of all the industries in the U.S. with all the environmental impacts they have, one has to wonder why this was it was so important to go after this one.. I’d like to hear someone (I know I keep asking this) articulate why they did this and what they hoped to accomplish, and why they picked this particular battle instead of the many others we might be able to imagine. In English, not legalese, and describing desired changes to the environment (Physical World).

25 thoughts on “Supreme Court throws out ruling classifying logging road runoff as industrial pollution”

  1. Here is the Court’s opinion.

    In response to Matt, all of the Court’s “liberal” members joined in the majority opinion. Hard on that basis to ascribe the outcome to ideology. Even more so when it is Justice Scalia (arguably the most “conservative” of conservatives on the court — and the most intelligent conservative, too) who filed the lone dissent supporting the environmental plaintiff’s position (albeit for reasons that have nothing to do with the environment and everything to do with his goal to rein in government regulation of individual liberty).

    A more parsimonious explanation for the outcome: This is what environmentalists get when they give rookie law students a key to the courthouse.

    • Some very talented attorneys represented NEDC throughout this litigation, not just “rookie law students.” And those “rookie law students” did an incredible amount of work on the case as well. Reasonable minds certainly differed on this case, but that does not diminish the physical and intellectual energy NEDC’s attorneys and students contributed.

      • The problem is that the attorneys (rookie or otherwise) were also, in essence, the clients, too. Who was doing the political heavy lifting in Congress and the state legislature? Who was overseeing the media strategy? Who was ensuring that EPA did the right thing? The answer is “no one.” Strategic environmental litigation is too important to be a class project.

        • Ah.. “the right thing” on so many phone calls with plaintiffs agencies are urged to do that… as if we all agree on what it is. I think that’s why someone mentioned (JZ) the air of “moral superiority.” I’m not accusing you, Andy, of that, but I have been on phone calls with others who read this blog, before I retired, where the air was redolent with the scent of “moral superiority.” But I was too busy calculating the cost per hour of all the BLM and FS employees and lawyers on the call to worry about it too much….

      • Well Sharon, I’m sorry if I’ve insulted such a distinguished and esteemed body of jurists. What a joke. I’ve insulted the most liberal judicial activist court in the country who dictates to a public that never voted for them. And I thought it was all about “following the law.” It sounds like once again it was the ninth circus that “wasn’t” following the law. The most overturned appeals court in the land. Didn’t the Supremes overturn like five 9th cases in one day last year(don’t quote me)? The decline and fall of Amerika.

        I would like to know more about why the Obama EPA dropped the appeal…and is it me…or did the Supreme’s make this ruling even after the EPA dropped the appeal? Is it a bit of a slam at the Obama EPA too? I’m not a big conspircacy theory fan…but “muddying the waters” with another useless EPA rule that will be litigated instantly is hardly “assuring” to anybody. The Supremes slappin em down is assurance.

        I have no proof…but there’s been a lot of EIS’s in MOntana that have been sitting on the shelf for over a year since FEIS with no decisions. Lots of them. I sense that the delay has had a lot to do with “how to address this storm water quality issue.” Infamous eco judge Molooy was already citing the case. One forest issued a press release indicating they were delaying an EIS until they could address the 9th’s ruling. I gots a feeling there may be a rush of decisions in the nect few months. I doubt any bogus EPA ruling would have resulted in that.

  2. Smokey and Andy: Thanks for sharing these links! I don’t think the entire problem is “rookie law students” so much as the lack of actual evidence for many of these claims. I hope this is a lesson-learned type of thing — otherwise it seems hard to justify too much more Supreme Court time on this type of argument. Or the Administration’s 11th-hour EPA political regulation.

  3. “Wouldn’t it be cheaper to have a meeting (open to the public) to discuss the specific water quality concerns, than to spend all the bucks to take the case to the Supreme Court?”

    Once again, does anyone honestly think that the folks at Pacific Rivers Council (and others) haven’t already done this a time or twenty over the years? Why do some always assume that when a lawsuit was filed by environmentalists that the enviros never thought of, or bothered to, have their concerns addressed directly by the Forest Service prior to going to court?

    As far as Sharon’s question: “Or is there some specific issue that relates to BMP’s not working?”

    My experience in the northern Rockies is that sometimes BMP upgrades are little more than simply running a blade up and running a blade back down a road. Maybe that’s effective, or maybe not.

    Also, we’re seen BMP upgrades for some of the largest logging projects (think Bitterroot Burned Area Recovery Plan) take place AFTER the logging and haul truck traffic is already complete, or not take place at all. This is obviously not what the EIS called for, but it seems like a pretty common practice in this region, but I’m not sure if it also happens elsewhere.

    • 1) well, they may have spoken to the Forest Service but that is not public. My old boss used to say that “people come to us and plead their case, when they really need to talk to each other”. If you use election power to win, then you lose when your guys are not in power.

      If you use court power to win, you have coevolution of documents and growing irritation by those not at the table (everyone else).

      Now if people aren’t doing what they are saying they will do, or it’s not working, then that’s another problem. Maybe putting something in about that could be part of The Solution.

      • Again, Sharon, what’s with all these assumptions? So you know for a fact that at no point the Pacific Rivers Council ever talked with the Forest Service in a public meeting about this issue? And if you don’t know this for a fact, why are you making this assumption?

        • Just to clarify a bit, I think we’re getting the Supreme Court news a bit jumbled in the comments here. The logging roads case decided by the Supreme Court on Wednesday noted above involved the Northwest Environmental Defense Center (NEDC) as plaintiff and timber companies and the Oregon State Forester and Board of Forestry as defendants. Because it was a Clean Water Act case, the typical “NEPA – administrative appeal/objection – then litigation as a last recourse” sequence wasn’t the same as the Pacific Rivers Council case taken up on cert by the Supreme Court on Monday.

          In both situations, though, Congress expressly gave the citizen groups the statutory tool of seeking judicial review of claims under the CWA, NEPA, and NFMA (often through the APA). And particularly when there is an explicit public process under NEPA, and the public has access to all comments and administrative appeals/objections submitted, it’s kind of head-scratching to say not everyone was at the table. Some might come to the table late or choose not to come to the table at all, but should that bar citizen groups from exercising their statutory rights? Plus, industry associations with significant financial resources intervene all the time in litigation between citizen groups and the federal government, so when they do, who is not at the table in this type of litigation?

          It seems a slippery slope to advocate that certain federal agency decisions not be subject to judicial review, which is the sense I get from anti-litigation sentiments here. That would take an act of Congress, of course. Would only Forest Service decisions be exempt from judicial review? Would other land management agencies’ decisions be exempt? What about all the other myriad agencies’ decisions? I am new to posting and perhaps these questions have been articulated in greater detail in past posts, but the notion that the rule of law should somehow not apply to the Forest Service does not sit well with me.

          • John, I can’t tell you how much I appreciate you taking the time to share with all us some important facts and context about this case, and how the law generally works in the USA.

            • John: I’m going to echo Matt’s appreciative comments here. It is nice to have some expertise regarding the law in these discussions, and it is good that you are willing to participate in such a helpful fashion — and without compromising your own opinions.

              My position is not that “the rule of law should somehow not apply to the Forest Service” at all, but rather that the laws are funky and broken and need to be changed. They’re not working. Sure, the USFS should “follow the law,” but the law should be clearly written and consistent with the original intent of the lawmakers. The failure of this current approach is everywhere we look, whether in the forests, in our courtrooms, or in our rural communities.

              What are your ideas for fixing the current system (assuming you are in at least partial agreement with my concerns)?

              • Most environmental statutes have been considered multiple times by multiple courts, so I’d think their legislative histories and “original intent” have been considered extensively and applied accordingly, although some judges give “legislative history” more weight than others. (legislative documents selection) is a free tool to search published court opinions.

                Plain statutory and regulatory language is certainly easier for agencies and citizens (and attorneys) to understand, apply, and enforce. But agencies also want discretion, so statutory and regulatory language won’t always be as straightforward as anyone wants it. I am not at a point where I have specific suggestions on legislative or rulemaking fixes. It seems from reading this blog there is frustration among some with compliance with pretty much every environmental law. From a quick perusal of posts and comments, it seems a recurring suggestion is that if agencies could complete NFMA planning NEPA analysis more quickly, avoid ESA consultation hurdles, or enter wilderness and roadless areas more readily, somehow more “restoration” work could get done to avoid wildfires and beetle outbreaks. (That is an over-simplification of most such comments, I realize.) I am not an -ologist of any sort, but I’m guessing most would agree that no piece of legislation or rulemaking is going to eliminate wildfires or beetle outbreaks, or necessarily reduce them, if that should even really be the goal.

                I realize we’re in a post about a CWA case, and my comment has veered from that.

          • Thank you very much, as the others have said, for your thoughtful comments. I used to work partially in Legal World and partially in Physical World and sometimes I think if we really listened deeply to each other that we might agree more than we think.

            I am not “anti-litigation”. But I think that resource disputes are like divorces in some states.. you should have mediation required before you go to court. And since these lands are public, those meetings would be open to all. I don’t think anyone here is “anti-litigation”, but some of us think that it should be a last resort on something that really makes a difference in Physical World.

            I probably have not articulated my views clearly enough and I hope you will help by asking relevant questions.

            Here are a couple of posts.. one on the “Cone of Silence”

            Read the Suckling quote in this post
            and think about being the target of “psychological warfare.”

            And there are many more like this one on Jack Ward Thomas, the former Chief and his thoughts.

            I hope you stay around and help explore these ideas, I stopped writing about them because it seemed like we reached an impasse…maybe need fresh thinking!
            On this blog you and anyone is allowed to author a post whenever you feel so inspired.

            • Hi Sharon, I checked out the previous posts you suggested, thanks.

              I don’t think Mr. Suckling’s statement is representative of all organizations or their staffs or members. It is certainly provocative and headline-grabbing, but the decision to pursue litigation is pretty carefully thought out. Does litigation further the mission of the group? Does the group have the resources and/or representation for litigation? Going up against the government and inevitable intervenors is no small task. Have all other options been explored? Because in many instances “administrative remedies” have to be exhausted before going to court, litigation often occurs after a number of attempts to resolve the matter with the agency have failed.

              I have some thoughts on the wisdom of attempting to change the standard practice of confidential settlement negotiations, but I’ll save them for another opportunity.

              • I’m sure that is the case.. but perhaps his group has an outside influence..


                This chart is from a post here:


                I know about exhausting administrative remedies, but when a group appeals they usually say “your NEPA sucks and we think you’re violating NFMA and ESA also.” That doesn’t really help understand what they think is physically wrong with the project.

                They may try to do deals on that (the physical reality) with the FS, but that is always behind closed doors.

                Please send your thoughts at some time, we could start a new thread with your post..

                The Congress believes that there is a problem and is seeking solutions. perhaps by discussion we could craft one that would satisfy most reasonable parties.

    • Generally, there are two kinds of road maintenance done on projects. Usually, the logger will blade the road just enough to keep their truck drivers from complaining. If there are any erosion problems during the haul, the Forest Service will require some work. When logging is complete, the road must be restored to full functioning, “commensurate with use”. This means that if only 5 loads were hauled, a light blading might be all that is required. However, if that road didn’t have waterbars before use, they might need them installed after use.

  4. More information and perhaps a slightly different take on the ruling, from the AP:

    GRANTS PASS, Ore. — A conservation group said Wednesday it will keep pushing federal authorities to more closely regulate muddy logging roads, despite a U.S. Supreme Court ruling on Wednesday that sided with the timber industry on the issue.

    Activists believe the ruling left room to press the U.S. Environmental Protection Agency to regulate runoff from the roads through specific permits, rather than broad recommendations, said Paul Kampmeier, a lawyer representing the Northwest Environmental Defense Center…..

    “The Supreme Court ruling today, while not the ruling we wanted, certainly suggests EPA has the power to solve the problem,” Kampmeier said. “We expect to continue working with EPA to get a solution that will be effective on the ground.”

    • But the States think BMPs are effective “on the ground”. Would it be possible for NWDC to state exactly what improvement they would like “on the ground” publicly?

      PS another issue is that most roads are not

      I will write them a note.

  5. Disconnecting road surface drainage from stream networks is not rocket science and can be done with high levels of effectiveness. This has been demostrated well in Montana.

    Excutive Summary:

    Rated BMPS:

    Private Landowner Outreach:


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