Georgia-Pacific Responds to Solicitor General's Opinion in "Forest Roads" Case
Ninth Circuit Decision in Forest Roads Case Was Wrong, Solicitor General Advises Justices; Says Clean Water Act Does Not Require Permits for Forest Road Runoff; Nevertheless Recommends High Court Reject Case
WASHINGTON, May 25, 2012 /PRNewswire/ -- Solicitor General Donald B. Verrilli, Jr. told the U.S. Supreme Court Thursday that the Court of Appeals for the Ninth Circuit reached the wrong decision in the much discussed "forest roads" case: Georgia-Pacific West, Inc. v. NEDC, Sup. Ct. No. 11-347. Nevertheless, the solicitor general advised the Supreme Court not to hear the appeal.
In May 2011, the full Ninth Circuit declined to review its three-judge panel's decision to reverse 35 years of law. Once the ruling goes into effect, forest road operators in the states under the appeals court's jurisdiction will be required to obtain Clean Water Act discharge permits for ditches, drains and culverts that channel rain runoff from their roads.
The U.S. Forest Service has estimated that if the Ninth Circuit ruling were applied nationally, it alone would have to obtain 400,000 permits. Oregon counties estimate the decision will cost them $56 million to secure permits for their 20,000 culverts. Federal and state regulators will have to completely redesign forestry programs that have been in place for a generation. In the states of the Ninth Circuit -- Washington, Oregon, California, Arizona, Nevada, Idaho, Montana, Alaska and Hawaii -- the timber industry employs a million people. Nationally, it supports 2.5 million jobs and $87 billion a year in wages.
The petitioners are the State of Oregon and members of the forest products industry. The respondent and originator of the underlying suit is the Northwest Environmental Defense Center, a professional sponsor of environmental litigation associated with the Lewis and Clark University Law School. Last December, the Justices asked the solicitor general to tell them if the U.S. Government believed they should grant certiorari and review the Ninth Circuit's decision.
Mike Adams, Georgia-Pacific senior vice president of sourcing and fiber supply, said: "We are disappointed that Mr. Verrilli did not recommend review of this destructive decision. Twenty-seven state attorneys general, counties nationwide and the entire forest products industry believe a review is essential. In his brief, the Solicitor General acknowledges that the Ninth Circuit was wrong on the law. Letting the Ninth Circuit decision stand would be destructive to forest products jobs across the U.S., as unnecessary permitting would increase total costs anywhere between $1 billion and $6 billion annually for forest owners, loggers, haulers and wood products mills, and would severely harm the competitiveness of our industry. We trust the Supreme Court will take note of these impacts, and agree to hear and ultimately to strike down the Ninth Circuit's rereading of the Clean Water Act."
Timothy Bishop, the lead appellate attorney for the forestry industry, said of the Ninth Circuit ruling: "The Ninth Circuit overturned two bedrock EPA Clean Water Act regulations that have guided forest roads for the last 35 years. Under these regulations, rainwater runoff from forest roads is not considered a 'point source' discharge 'associated with industrial activity' and therefore does not require national permits. The Ninth Circuit misinterpreted these regulations and held that national permits are required, imposing a costly and inefficient national permitting regime in place of state 'best management practices' tailored to fit local conditions."
The Solicitor General's brief said that the Supreme Court did not need review the case because EPA may soon adopt regulations overruling the Ninth Circuit. Of this reasoning, Mike Adams of Georgia-Pacific continued: "We appreciate the EPA's statement that it will issue new regulations reaffirming that forest road runoff does not require Clean Water Act permits. The possibility that new rules may be adopted sometime in the undefined future does not reduce the need for Supreme Court review now. EPA has not proposed specific regulations, and proposed regulations are subject to revision after notice-and-comment. It could take years for new EPA regulations to go into effect and, once they do, they are subject to further court challenge. In the meantime, stormwater runoff from forest roads may require permits under the Ninth Circuit's decision. Only Supreme Court reversal of the Ninth Circuit's ruling can end uncertainty over permit requirements and prevent more needless lawsuits."
The Supreme Court is expected to decide on whether to hear Georgia-Pacific West, Inc. v. NEDC, Sup. Ct. No. 11-347 before adjourning for the summer.
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