United States: U.S. Supreme Court Decision Leaves The Road Wide Open For Clean Water Act Citizen Suits And Challenges To Agency Interpretations

Last Updated: April 2 2013
Article by Sharon M. Mattox and Corinne Snow

V&E Environmental Law Update E-communication.

The U.S. Supreme Court has determined that EPA had validly interpreted its regulations to hold that stormwater runoff from ditches along logging roads is exempt from National Pollutant Discharge Elimination System (NPDES) permitting under the Clean Water Act (CWA). The Court's decision to reverse the Ninth Circuit's interpretation of EPA's rules will save many in the logging industry from the cost and expense of the permitting process. The jurisdictional holding in Decker v. Northwest Environmental Defense Center (NEDC), however, leaves environmental groups ample freedom to bring future CWA suits, even to challenge practices that EPA allows under its own interpretations of its rules. Several members of the Court also signaled willingness to reconsider the Court's current policy under Auer v. Robbins of deferring to agencies on the meaning of the rules they have created.

Logging and the Clean Water Act  

The CWA prohibits the discharge of any pollutant into navigable waters from a point source without an NPDES permit. The Act defines "point source" broadly to include "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit . . . from which pollutants are or may be discharged." During heavy rains, water runs off the roads used by logging companies to harvest wood into a system of ditches, culverts, and channels. In some cases, the water eventually makes its way into nearby rivers and streams. This stormwater often contains large amounts of sediment, which can be harmful to fish and other aquatic organisms, and is considered a "pollutant" under the CWA.            

While EPA may not exempt categories of point sources from the CWA, the agency can issue regulations clarifying which types of sources fall within the definition of "point source." EPA has issued two such rules related to logging. First, under the "Silvicultural Rule," EPA limited point sources to "conveyance[s] related to rock crushing, gravel washing, log sorting, or log storage facilities which are operated in connection with silvicultural activities" and exempted a number of other forest-related activities. Second, because certain stormwater runoff is exempt from the CWA's permitting requirements, EPA issued the "Industrial Stormwater Rule," which clarifies that certain industries and industrial activities (including logging) are subject to NPDES permitting requirements.   

Litigation in the courts below

In September 2006, Northwest Environmental Defense Center filed suit in the United States District Court for the District of Oregon under the CWA's citizen-suit provision. The group argued that stormwater runoff from two logging roads in Oregon's Tillamook State Forest created unpermitted discharges in violation of the Act. The district court concluded that the ditches, culverts, and channels alongside these roads were not point sources under the Silvicultural Rule and dismissed the action for failure to state a claim. The Court of Appeals for the Ninth Circuit reversed, holding that (1) the district court had jurisdiction to hear the case, (2) the discharges were not exempt under the Silvicultural Rule, and (3) the discharges were "associated with industrial activity" within the meaning of the Industrial Stormwater Rule, despite the EPA's conclusion to the contrary. 

In response to the Ninth Circuit's decision, EPA amended the Industrial Stormwater Rule to reflect the language in the Silvicultural Rule, so that only logging activities "related to rock crushing, gravel washing, log sorting, or log storage facilities" would require NPDES permits. EPA finalized this amendment just days before the Supreme Court heard oral arguments in the case.

Supreme Court decision

The Supreme Court reversed the Ninth Circuit and upheld EPA's interpretation of its rules in a 7-1 opinion penned by Justice Kennedy. Justice Breyer, whose brother participated in the Ninth Circuit's decision, took no part in the Supreme Court's decision.

Jurisdiction

The Court held that NEDC properly invoked jurisdiction under the CWA's citizen suit provision (section 1365), and was not barred from bringing suit by the jurisdictional limit found elsewhere in the Act. Section 1369(b) of the CWA governs jurisdiction over particular EPA actions, including issuing permits, and only allows a challenge to be brought in the court of appeals within 120 days of EPA's action. The Court held that the section 1369(b) limitations did "not bar a district court from entertaining a citizen suit under section 1365 when the suit is against an alleged violator and seeks to enforce an obligation imposed by the Act or its regulations." The NEDC's claim fit within the citizen suit provision because it was a claim to enforce a permissible reading of the ambiguous Silvicultural Rule, rather than a challenge to the Rule itself.

The case was not moot, despite the fact that EPA had already amended the Industrial Stormwater Rule to exempt the petitioners from permitting requirements. As the Court explained, the case is still live because the petitioners could still be held liable for unlawful discharges under the earlier version of the Rule if NEDC prevailed on the merits.

Interpretation of the Industrial Stormwater Rule

Under Auer v. Robbins, courts must uphold an agency's interpretation of its own rule, so long as the interpretation is not "plainly erroneous or inconsistent with the statute" and was not created as a post hoc rationalization in response to litigation. The Court determined that EPA had reasonably interpreted the Industrial Stormwater Rule to exempt logging roads from permitting, and that the CWA did not foreclose EPA's reading. Furthermore, EPA had consistently used this same interpretation to exempt these kinds of logging discharges. The Decker Court therefore determined that EPA was entitled to Auer deference, and upheld EPA's interpretation. Given that a comprehensive set of state stormwater regulations were already in place, the Court noted that EPA could have fairly concluded that further federal regulation was not necessary.

Implications of the Deckerdecision

Given that EPA has already promulgated a new Industrial Stormwater Rule largely exempting logging roads, Decker will have little substantive impact on the application of permitting requirements for logging activities. More importantly, the decision leaves the door open for environmental groups who want to challenge actions they believe to violate environmental statutes. So long as these plaintiffs challenge actions that fall within a "permissible reading" of an ambiguous agency rule, they may seek to enjoin such actions even if the agency has determined that the challenged action does not violate the rule. Furthermore, under today's decision, such groups can continue to raise these claims even after the agency has amended its rules to clarify that the challenged actions were never intended to be covered by the regulations. Groups may continue to raise these claims at any time as long as they do not "seek an implicit declaration that the . . .  regulations were invalid as written." Given that the CWA includes civil penalties of up to $25,000 per day and attorney's fees for such violations, ambiguous regulations now hang like the sword of Damocles over industry members that may be future targets for environmental groups.

The future ofAuerdeference

Decker was not an appropriate case to make such a determination, given that neither party had fully briefed the issue. In contrast, Justice Scalia argued in his partial concurrence and partial dissent that the time was ripe to overturn Auer. Instead of allowing an agency to select any reasonable interpretation, Justice Scalia asserted that the fairest reading of the regulations should apply. Justice Scalia explained that that the Court has not articulated a good justification for allowing an agency to "resolve ambiguities in its own regulations." He noted that agencies already have the power to amend their own regulations, or to decide not to prosecute particular cases and argued that these powers mitigated against the need to allow such broad interpretive deference. As Justice Scalia explained, "one of the great rules of separation of powers [is]: He who writes a law must not adjudge its violation." Three members of the Court have now signaled a willingness to reconsider Auer, which could have wide spread implications on the future review of agency actions. The "Auer"may soon be up for deference to agency interpretations of regulations.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Cadwalader, Wickersham & Taft LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Cadwalader, Wickersham & Taft LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions