Possible Supreme Court Case to Watch

From the Wall Street Journal:

The Ninth Circuit Court of Appeals is often a source of national amusement, but if one of its recent decisions on the Clean Water Act is allowed to stand, it will wreak havoc on the timber industry and damage other agricultural management as well. Today the Supreme Court is likely to decide whether to hear the appeal on a case that could reinterpret a longstanding classification in environmental law.

In Georgia Pacific v. Northwest Environmental Defense Center, the question concerns whether rural roads used for hauling timber should be subject to the same stringent environmental permitting process as major industrial sites and municipal systems.

An environmental group claimed that water runoff from logging roads was getting into fish-bearing streams. The District Court said there was no case but in its ever-willful way the liberal Ninth Circuit overturned, ruling that the roads should fall under so-called “point source” standards, which require special permits from the EPA.

The stricter classification is a perennial on the wish list of environmentalists because it would introduce an army of lawyers and specialists every time a new logging road was built. Under the roads’ historical Clean Water Act classification as “non-point source,” storm-water runoff on the roads is regulated by the states, which develop their own requirements and restrictions on road use. The stricter category would delay the process as the permits themselves become a new locus for additional environmental litigation.

The U.S. Forest Service says that if the ruling stands, it would have to obtain more than 400,000 permits, working with 46 states, a process that could take 10 years. And that’s the green goal: to create enough delay and bureaucracy that timber harvesting will cease to be profitable.

According to Oregon Democratic Senator Ron Wyden, the Ninth Circuit’s radical interpretation “would shut down forestry on private, state and tribal lands” in the states where it applies….

Seems like a pretty high-probability grant to me; I’m certainly no environmental law expert, but the case looks like a big deal (it drew a 25-state-AG amicus brief, which I think is rather rare at the cert stage), and SCOTUSblog includes it on its “petitions to watch” list. So if there’s a grant, remember that you heard it here first (or maybe second). If there’s a denial, then — prediction? What prediction? Disclosure: My colleague Tim Bishop at Mayer Brown is on the case, though I didn’t work on it personally.

UPDATE (Mon., Dec. 12): No grant or deny yet — rather, the Court called for the Solicitor General to convey the views of the federal government on the case.

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