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The New York Times: "Justices Back Loggers in Water Runoff Case"

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March 20, 2013 -- The U.S. Supreme Court ruled that logging companines were not required to obtain permits for stormwater runoff from logging roads.

The New York Times

http://www.nytimes.com/2013/03/21/us/justices-say-oregon-loggers-dont-need-permits-for-water-runoff.html?_r=0

By Adam Liptak

WASHINGTON — The Supreme Court on Wednesday ruled that logging companies and forestry officials in Oregon were not required to obtain permits from the Environmental Protection Agency for storm-water runoff from logging roads.

The decision was a blow to conservationists who had used the permit process to block the silty runoff from logging, which they said choked forest streams. The ruling also suggested that at least some members of the court may be open to a fundamental re-examination of how federal courts approach determinations by administrative agencies.

Justice Anthony M. Kennedy, writing for the majority in the 7-to-1 decision, said the agency’s conclusion that no permits were required was entitled to deference. “It is well established,” he wrote, “that an agency’s interpretation need not be the only possible reading of a regulation — or even the best one — to prevail.”

That is indeed settled law, but Justice Antonin Scalia, in a long and slashing dissent, said it was time to reconsider the idea that an agency may not only promulgate regulations but also say what they mean.

In a concurrence, Chief Justice John G. Roberts Jr., joined by Justice Samuel A. Alito Jr., said the case decided Wednesday was not a proper one in which to reconsider a basic principle “going to the heart of administrative law.” But he added that Justice Scalia’s dissent amounted to an invitation for a new case squarely presenting the issue.

Justice Kennedy acknowledged that discharges from logging roads are significant in rainy Oregon, contain “large amounts of sediment” and “can harm fish and other aquatic organisms.” But he said the agency was entitled to find that permits were not required under its regulations, though they were susceptible to more than one meaning.

Oregon also regulates storm-water runoff, Justice Kennedy added, and the federal agency “could reasonably have concluded that further federal regulation in this area would be duplicative or counterproductive.”

Justice Scalia wrote that the better reading of the regulations was to require permits. An exception for natural runoff does not apply, he said, when the water flows through ditches, culverts and the like. And, he added, another part of the regulations specifically lists logging as one of the covered industries.

Just days before the case was argued in December, the agency issued a clearer interpretation saying no permits were required. State and federal officials urged the court to rule that the case was, as a consequence, moot. But all eight justices agreed that the logging companies remained subject to potential penalties under the old interpretation, keeping the case alive.

Justice Stephen G. Breyer did not participate in the two consolidated cases decided Wednesday, Decker v. Northwest Environmental Defense Center, No. 11-338, and Georgia-Pacific West v. Northwest Environmental Defense Center, No. 11-347. Judge Charles R. Breyer, the justice’s brother, had sat on the appeals court panel whose decision was under review.