U.S. top court rules for timber industry over road runoff

WASHINGTON Wed Mar 20, 2013 5:46pm EDT

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WASHINGTON (Reuters) - The U.S. Supreme Court on Wednesday endorsed the U.S. Environmental Protection Agency's long-standing decision not to require Clean Water Act permits for stormwater that runs off logging roads.

The nine-member court ruled on a 7-1 vote, with Justice Stephen Breyer recused, that the EPA's conclusion was a reasonable interpretation of the law.

The dispute - centering on two cases that the court consolidated - has attracted intense interest from the timber industry, which is keen to be exempt from Clean Water Act permitting. A total of 31 state attorneys general weighed in to support Oregon, which also opposes permitting.

The case arose when the environmental group, the Northwest Environmental Defense Center, challenged EPA's interpretation of the law as it applied to two roads in the Tillamook State Forest in Oregon by suing logging road operators in federal court.

In Wednesday's opinion, Justice Anthony Kennedy, writing for the majority, said that it was reasonable for EPA to conclude that runoff from logging roads did not fit within the definition in the Clean Water Act and associated regulations of the term "industrial activity."

Kennedy also noted that states already regulate logging roads, meaning the EPA "could reasonably have concluded that further regulation in this area would be duplicative or counterproductive."

Justice Antonin Scalia wrote a dissenting opinion in which he disagreed with the majority's view that the EPA interpretation of the law was reasonable.

The timber industry welcomed the ruling, with Dave Tenny, president and chief executive of the National Alliance of Forest Owners saying that it "validates EPA's longstanding policy that rainwater runoff from forest roads is best addressed through state-adopted best management practices."

The litigation over the Oregon roads is not over, however, because the environmental group plans to continue to challenge EPA's interpretation of the law, according to its attorney, Stanford Law School Professor Jeffrey Fisher.

Before the Supreme Court decided the case, EPA issued a new rule that made it clear that the agency did intend for logging roads to be exempt from the permitting process, but Fisher said that may not apply to all roads.

"We don't think the new rule has definitively resolved the issue," Fisher said in an email.

Timothy Bishop, a lawyer at Mayer Brown who argued the case for the timber industry, disagreed with that assessment, saying the new EPA rule is "legally unassailable."

An EPA spokeswoman referred calls on the ruling to the Justice Department. A spokesman there did not immediately respond to a request seeking comment.

The two cases are Decker v. Northwest Environmental Defense Center, U.S. Supreme Court, No. 11-338 and Georgia-Pacific West Inc. v. Northwest Environmental Center, U.S. Supreme Court, No. 11-347.

(Editing by Kevin Drawbaugh and Eric Walsh)

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