Roberts then asked, "In early November?" And Stewart repeated, "In early November."
Roberts shot back, "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 gamely apologized but noted that the government had explained in its opening brief that the rule had been proposed. Roberts was not mollified and said, "Oh, I know that there was a proposed rule. Is it your experience that proposed EPA rules become final within a couple of months particularly?"
The EPA rule had become final faster than is usually the case, conceded Stewart. Although it was "suboptimal" for the rule to be issued the Friday before argument, he added, it would have been "even worse" from the standpoint of the parties and the Court's decision-making process if the rule had been issued a week or more after the arguments.
But a skeptical Roberts said, "Well, maybe. And it would have been best if we had known about this in early November."
Last week in arguments in an ERISA health insurance case, US Airways v. McCutchen, Roberts angrily accused the Office of Solicitor General of not being more candid that a change in the government's legal position occurred because there had been a change in administrations from the George W. Bush administration to the Obama administration. The government's brief in that case had only noted that "upon further reflection … the Secretary is now of a [different] view."
In Monday's logging industry case, however, there was a certain irony in the fact that the government last March had urged the justices, who had invited the government's views, to deny review in the case. The government had told the court that, although the Ninth Circuit's decision was wrong, there was no square circuit conflict; Congress had temporarily barred the EPA from implementing the Ninth Circuit's decision, and the EPA had announced its intent to amend "expeditiously" a regulation to make clear that the industry did not need permits.
The government reminded the court of the EPA's intent in its September brief in the case.
Monday's arguments were dominated by questions about what the court should do with the case now that the EPA rule had been finalized.
Mayer Brown's Bishop argued strenuously that the new EPA rule did not moot the case and the justices should decide the case under EPA's stormwater rule. The case is alive because the Northwest Environmental Defense Center, he said, is seeking attorney fees, penalties and remediation for past violations.
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