This December, the United States Supreme Court will consider simultaneously Decker v. Northwest Environmental Defense Center and Georgia-Pacific West, Inc. v. Northwest Environmental Defense Center, two appeals resulting from the Ninth Circuit case of Northwest Environmental Defense Center v. Brown, 630 F.3d 1063 (9th Cir. 2011).  The case centers on stormwater runoff resulting from logging operations in state forests in Oregon and whether it falls within certain permitting requirements under the Clean Water Act (“CWA”).  In the past, the Environmental Protection Agency (“EPA”) has determined that runoff resulting from logging operations does not fall within these requirements.  However, the Ninth Circuit below in Brown held that the stormwater runoff collected and discharged by a system of ditches, culverts, and channels alongside the roads used by the logging companies is a point source discharge that requires a National Pollutant Discharge Elimination System (“NPDES”) permit.  Both state forestry officials (“Decker”) and private companies (“Georgia-Pacific”) filed petitions for writ of certiorari with the Supreme Court, which will hear oral arguments on December 3, 2012.

Logging companies contracted with the state use a system of roads to remove harvested trees from the state forests.  The sloped roads used by the companies’ trucks and equipment utilize a system of ditches, culverts, and channels to handle stormwater runoff and extend the duration of the roads.  This system collects not only water but a substantial amount of sediment as well, which is considered a pollutant.  The water and sediment eventually finds its way to the rivers, leading to the argument by the Northwest Environmental Defense Center (“NEDC”) that this system is point source discharge and is subject to NPDES permits.  Decker and Georgia-Pacific both argued in their respective writs for certiorari that a permit was not required because the drainage system was a non-point source discharge, fell under the silvicultural exemption, or at the very least an amendment to the CWA in 1987 excused the requirement.  These arguments stem from 33 U.S.C. § 1342(p), which requires NPDES permits for stormwater discharges resulting from industrial activities.  However, it was left to the EPA to decide what exactly constituted “industrial activity.”  The EPA passed its own regulation, 40 C.F.R. § 122.26(b)(14), which determined that stormwater runoff from logging activities and other silvicultural activities is non-industrial and does not require an NPDES permit. Additionally, both Decker and Georgia-Pacific argued that with the two-step process required by the 1987 Amendment to the CWA, the EPA intentionally refused to list logging operations as “industrial activity” that would require a NPDES permit for stormwater runoff.

The Supreme Court granted certiorari and will be considering two distinct issues.  The first is whether the Ninth Circuit improperly determined that the stormwater runoff resulting from logging operations is industrial runoff, subject to NPDES.  This holding, argues Decker and Georgia-Pacific, goes against the longstanding determination of the EPA and its regulations, the apparent intention of Congress in the 1987 amendment to the CWA, as well as decisions made by several other circuits that deferred to EPA decisions.  The second issue is the manner in how NEDC originally brought the suit.  Decker argues the Ninth Circuit allowed NEDC to bypass judicial review of the NPDES permitting rule and challenge the validity of the rule directly in a citizen suit to enforce the CWA.  This argument stems from countering statutes, 33 U.S.C. § 1365 and 33 U.S.C. § 1369.  The Supreme Court must decide whether or not the decision to allow the citizen suit under § 1365 was proper and not precluded by § 1369, which says EPA rulings cannot be challenged in any civil or criminal enforcement proceeding, as the Ninth Circuit apparently allowed.

Should the Supreme Court uphold the Ninth Circuit’s decision (stormwater runoff from logging operations is industrial runoff), logging companies would be required to apply for and receive a NPDES permit for all the roads they use during operations, rather than utilizing best management practices.  This would result in time consuming litigation and reallocation of resources for the companies.  State governments may even be required to alter their well-established road drainage system requirements in order to reduce NPDES permitting.  Most importantly, however, is if the Court were to uphold it would approve the Ninth Circuit’s decision to break thirty-five years of precedent and overrule the EPA and its interpretation of its own regulations.  This may very likely require a revisit to Chevron.


Sources:

  • Nw. Envtl. Def. Ctr. v. Brown, 640 F.3d 1063 (9th Cir.)Petition for Writ of Certiorari, Decker v. Nw. Envtl. Def. Ctr., No. 11-338 (U.S. Sept. 13, 2011), 2011 WL 4352279.
  • Petition for a Writ of Certiorari, Georgia-Pacific W., Inc. v. Nw. Envtl. Def. Ctr., No. 11-347 (U.S. Sept. 13, 2011), 2011 WL 4352287.
  • Respondent’s Brief in Opposition, Decker v. Nw. Envtl. Def. Ctr., Nos. 11-338, 11-347 (U.S. Nov. 10, 2011), 2011 WL 55487721.

Tarrant Reg’l Water Dist. v. Herrman, 656 F.3d 1222 (10th Cir. 2011) (holding that Oklahoma statutes prohibiting Oklahoma water users from selling water to users in Texas did not violate the Commerce Clause because the Red River Compact preempted it).

This case involves a dispute between a Texas water agency (“Tarrant”) and the State of Oklahoma over water apportioned under the Red River Compact (“Compact”). Tarrant filed a claim against the Oklahoma Water Resources Board (“OWRB”) in an attempt to invalidate a number of Oklahoma statutes that limited Tarrant’s ability to acquire water in Oklahoma for use in Texas. Tarrant claimed that the statutes violated the Dormant Commerce Clause and that they were preempted by the Compact under the Supremacy Clause. Further, Tarrant argued that it had standing to bring a claim against OWRB on behalf of its agreement with the Apache tribe concerning the tribe’s ability to sell water to Tarrant. The Tenth Circuit (“court”) held against Tarrant on all counts.

In order to bring water to booming Dallas-Fort Worth, Tarrant sought to acquire water from Oklahoma in three different ways. First, it sought to appropriate water subject to the Compact from a number of Oklahoma tributaries located in basins in Oklahoma and administered by the Compact. Second, it attempted to enter into contracts with landowners in Stephens County, Oklahoma, in order to acquire groundwater. Finally, it entered a memorandum of understanding (“MOU”) with the Apache Tribe concerning the Tribe’s potential water right.

The district court granted summary judgment in favor of OWRB on the Supremacy and Commerce Clause claims and found that Tarrant’s claims for both the Stephens County groundwater and the Tribe’s MOU were not ripe for review. Tarrant appealed to the court on all issues.

Reviewing all claims de novo, the court first looked at Tarrant’s claim that the Oklahoma statutes violated the Dormant Commerce Clause. The court acknowledged that the statutes in question would normally violate Dormant Commerce Clause because they place a burden on interstate commerce by explicitly imposing additional burdens on out-of-state actors. However, because the Compact was approved by Congress as federal law, and because Congress can consent to allowing states to violate the dormant commerce clause, the court needed to examine whether the Compact sanctioned Oklahoma’s statutes. If it did, then the statutes would be allowed under the Compact even if they would otherwise have violated the Dormant Commerce Clause. While cognizant of the fact that silence on the part of Congress does not constitute consent to condone commerce clause violations, the court held that the language of the compact was sufficiently clear to show that Congress affirmatively contemplated that it was consenting to state protectionism.

The court next addressed Tarrant’s preemption argument. Tarrant argued that under the Supremacy Clause, the Compact, through conflict preemption, prohibited Oklahoma’s protectionist statutes. The court disagreed for a number of reasons. First, preemption is generally disfavored in water law when statutes are longstanding in order to protect the police power of the states. Second, the Compact specifically stated its intent not to displace state law. Third, nothing in the comments to the Compact supported preemption. Finally, a compact authorizing states to undertake protectionist policies is unlikely to preempt those same laws. In other words, if a compact specifically allows states to deal with their own water issues, then it is unlikely that the compact intended to invalidate protectionist state laws.

Next the court turned to Tarrant’s claims related to purchased groundwater from Stephens County. The court held that Tarrant did not have standing to bring this claim because it had not suffered a justiciable injury. The court reached this conclusion because the statutes Tarrant challenged only applied to surface water rather than groundwater. The court also held that the Stephens County claim was not ripe because neither Tarrant nor the Stephens County landowners had filed for a groundwater permit.

Finally, the court held that the Apache Tribe claim was not ripe because the Tribe had not yet quantified its water right, nor had it actually entered into a contract with Tarrant to export water to Texas.

Therefore, the court held in favor of OWRB on all counts. Articulating that its role is not to pass judgment on the economic policy implications of the Compact, the court held that the Compact allowed Oklahoma to enact protectionist statutes at the expense of Tarrant.