Ouch! For the second time in one week, Chief Justice John Roberts Jr. chastised the Office of Solicitor General for not being more forthcoming, this time in a case involving the logging industry and water pollution.
In Decker v. Northwest Environmental Defense Center (consolidated with Georgia-Pacific West v. Northwest Environmental Defense Center), the logging industry, a large number of states, and the Obama administration challenged a ruling by the U.S. Court of Appeals for the Ninth Circuit. The appellate court had rejected the Environmental Protection Agency’s position that the Clean Water Act does not require permits for stormwater runoff from ditches and culverts on roads used by the industry to harvest lumber.
Last Friday, the Environmental Protection Agency finalized a new rule that potentially could moot, or result in the Court dismissing as improvidently granted, its review of the logging industry’s appeal.
A clue that Roberts was peeved about something came immediately during arguments in the case on Monday when he congratulated Mayer Brown’s Timothy Bishop, representing Georgia-Pacific and the Oregon state forester, for getting “almost all the relief” his client had sought under the EPA’s new rule. He pointedly added, “And thank you for calling it to our attention.”
However, the chief justice held his fire until Deputy Solicitor General Malcolm Stewart stood up to support Bishop’s argument that the Ninth Circuit’s decision was wrong.
Roberts asked Stewart if he were “as surprised as we were to learn about that final rule?”
Stewart said his office was not surprised. Roberts then proceeded to grill Stewart on when he had learned that the final rule was issued on Friday.
“I learned on Friday morning that the final rule would be issued,” said Stewart. “I learned on Friday afternoon that the final rule had been issued. Within five minutes of that time, I alerted counsel for both the Petitioners and….”
Roberts interrupted: “You had no idea before Friday that this was coming out?”
Stewart replied that he knew it was a “strong possibility” because the EPA issued a notice in September of proposed rulemaking. The Office of Management and Budget, he added, had a notation its website in early November to the effect that the rule had been transmitted for final approval by OMB.
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 the 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.
“Congress completely revamped the Clean Water Act’s approach to stormwater in 1987 and it made clear that as a default point-source, stormwater is regulated by the state,” he said. Permits are required only for discharges that are associated with industrial activity and a few other categories. Congress gave EPA discretion, he said, to determine what activities count as industrial and the agency has said logging is not industrial activity.
Stewart urged the Court to vacate the Ninth Circuit decision as moot.
And Jeffrey Fisher of Stanford Law School, representing the Northwest Environmental Defense Center, argued the Court should dismiss the case as improvidently granted. His client, he said, will make a claim for forward-looking relief in the lower courts because it contends the EPA’s new rule “simply violates the [Clean Water Act].”
Marcia Coyle is the chief Washington correspondent for The National Law Journal, a Legal affiliate based in New York.