Posted on December 4, 2012 at 1:44 pm by John Elwood
Because Decker v. Northwest Environmental Defense Center and Georgia-Pacific West, Inc. v. Northwest Environmental Defense Center present three important environmental law questions, it was hard to tell before argument what the Court would spend the most time on: The question of the courts’ jurisdiction under the citizen-suit provision of the Clean Water Act (“CWA”) to entertain challenges to EPA’s interpretation of its own regulations? EPA’s interpretation of a regulation to provide that stormwater discharges through logging-road ditches and culverts are not “associated with industrial activity” and thus do not require a CWA permit? Or its interpretation of another regulation to provide that such discharges are not from a “point source” and thus do not require a permit?
As it happens, the Court spent little time at argument Monday on any of the questions it granted cert. to decide, and instead devoted nearly the entire hour to discussing a new rule EPA promulgated unexpectedly on Friday – just days before argument, and likely after all of the advocates had completed their moot courts. And it seems to be a foregone conclusion that that Rule, which is so new it hasn’t yet made its way into the Federal Register (and even the version posted on the EPA website is labeled “not the official version”), will determine the outcome of these cases. The Rule is explicitly designed to overrule the Ninth Circuit decision under review in Decker/Georgia-Pacific, and ratifies, in a notice-and-comment rule that would be eligible for Chevron deference, the interpretation that EPA gave to the prior version of its stormwater rule: that only certain categories of logging activity that apparently are not at issue here — “rock crushing, gravel washing, log sorting, and log storage” — are “industrial activity subject to permitting.” The government’s unusual alacrity in issuing the rule suggests nervousness that an adverse decision in this case might compromise its ability to regulate in this area — or that it was concerned the Court might cut back on the scope of citizen suits under the CWA, which Democratic administrations have viewed more favorably than Republican ones.
Arguing for Georgia-Pacific, Chicago lawyer Timothy Bishop was able to say just one sentence before the Chief Justice interrupted him to congratulate his clients for “getting almost all the relief they’re looking for under the new rule issued on Friday” and pointedly (more on which later) thank him “for calling it to our attention.” Bishop then immediately faced questioning from the Chief Justice and Justices Ginsburg, Sotomayor, Kagan, and (briefly) Kennedy suggesting that there was no longer a live controversy and the case was now moot, or at least that it would not be prudent for the Court to proceed without a lower court opinion and briefing on the effect of the new rule; in the words of Chief Justice Roberts, “it’s an unusual situation for us to rule in a case where the issue has ongoing significance and that’s taken away.” Bishop disputed that the case was moot, arguing that challengers would argue the rule was inconsistent with the CWA, and that his client still had to contend with NEDC’s claimed entitlement to attorney’s fees, statutory penalties, and remediation for past environmental harm, although he hastened to add that since “this only happened on Friday . . . I can’t claim that I’ve done complete research on [remediation].” He urged the Court that there was “nothing new in the rule,” which simply restated EPA’s prior interpretation, and argued that the Court should reverse the Ninth Circuit for the reasons previously stated in his brief to avoid subjecting petitioners to years of litigation that would accomplish nothing.
Deputy Solicitor General Malcolm Stewart, arguing for EPA as amicus curiae, argued that the case was moot and the Ninth Circuit’s judgment should be vacated. But for the second time in a week, the Office of the Solicitor General found itself crosswise with former Deputy Solicitor General John Roberts – and his questioning made clear that he considers the Office’s shortcomings in this case far more serious than its use of the phrase, “upon further reflection.” The Chief Justice again began the questioning: “Were you as surprised as we were to learn about that final rule?” When Stewart replied that his office had not been surprised, Roberts sought to determine what they knew and when they knew it. Stewart said that he learned Friday morning that the rule would be issued, and “[w]ithin five minutes” of its issuance, he “alerted counsel for both the Petitioners and . . . ” The Chief Justice interrupted, “You had no idea before Friday that this was coming out?” Stewart conceded he “knew that it was a strong possibility” because there was a notation on the Office of Management and Budget website in “early November . . . that the rule had been transmitted for final approval.” Roberts replied, “Maybe in the future you could let us know when something as definite as that comes. There were 875 pages on the merits briefing in this case, and if we knew that the final rule was imminent, we could have rescheduled the case for April or something along those lines.”
Stewart apologized, but noted that the government had explained in its opening merits brief, filed in September, that EPA had issued the proposed rule. Roberts responded, “Is it your experience that proposed EPA rules become final within a couple of months particularly?” Stewart conceded that “this [rule] happened more quickly than it usually does,” but he said it had been timed with “respect for the Court’s processes rather than disrespect”: While release of a new rule the Friday before a Monday oral argument was “suboptimal,” Stewart said, it was preferable to releasing the rule “a week or two after” oral argument. “Well, maybe,” the Chief Justice responded, but it “would have been best if we had known about this in early November.”
Stewart then plowed ahead with his argument. The government believes that the new rule “renders the case moot,” and asked that the Court either vacate the Ninth Circuit’s decision as moot or remand to that court to address mootness in the first instance. In the government’s view, attorney’s fees would not be available because “at the end of the day,” NEDC “got no relief,” and civil penalties would not be available under governing precedent because they would serve no deterrent function because there was no longer illegal conduct to deter. Stewart, like Bishop, expressed some reservations before answering about remediation for past harms, saying that “we would want to take a closer look at” one aspect of that issue.
Jeffrey Fisher, representing the Northwest Environmental Defense Center, argued that the case was not moot and, at most, the Court should dismiss the case as improvidently granted. The Chief Justice and Justice Kennedy noted that the case would then go back to the district court for further proceedings under the Ninth Circuit’s opinion, which seemed inconsistent with the new EPA rule that plainly sought to revisit that decision; as the Chief Justice said, the Ninth Circuit judges “will, quite reasonably, think they are done” with the case and no changes need be made to its opinion. Fisher was the sole advocate who managed to advance arguments not strictly involving the new regulations; he reprised his client’s argument that a litigant bringing a citizen suit could validly dispute EPA’s interpretation of a regulation or statute in the course of a citizen suit to enforce the CWA. Justice Kagan said that “it’s at least arguable that you’re wrong” that such arguments could be advanced through citizen suits and asked “why don’t you proceed” through the explicit judicial review provision for new regulations under 33 U.S.C. § 1369. Fisher responded, “What we’ll do is proceed whatever way we can.” Fisher also argued that his client had a Chevron step II argument that the new Rule was an unreasonable construction of the statute in that modern logging is every bit as “industrial” as the four “industrial” categories defined by the rule (and indeed the roads in question may be associated for those categories), as well as other activities (such as residential development) that would involve activities functionally indistinguishable from logging.
It is difficult to determine where the Court may be headed. At a minimum, there appeared to be considerable skepticism for Bishop’s proposal that the Supreme Court decide the case on the merits based on the new rule. Although it is unclear whether the Court will vacate the Ninth Circuit’s judgment and remand with directions to dismiss, or vacate and leave disposition to the court of appeals, it now seems likely the Court will not resolve any of the three questions on which it granted cert. And given the lack of briefing and lack of time to reflect on the implications of the new rule — as demonstrated by the fact that two of the three lawyers who argued Monday expressed uncertainty about the effect of the new rule on NEDC’s ability to obtain remediation — the Court may decide it would be best to let the Ninth Circuit determine the effect of the new rule in the first instance.
[Note: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as co-counsel to the respondent in these cases, but the author of this post is affiliated with another law firm.]