Is the Ninth Circuit Due for Environmental Correction?

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Will 2012 provide a repeat of 2012? Specifically, will the Supreme Court’s October 2012 term find the Supreme Court repeatedly reversing the U.S. Court of Appeals for the Ninth Circuit in environmental cases as it did in the October 2008 term? In 2008, the Supreme Court heard an unusually high number of environmental cases, six: Winter v. Natural Res. Def. Council, Summers v. Earth Island Inst.Entergy Corp. v. Riverkeeper Inc.Coeur Alaska, Inc. v. Se. Alaska Conservation Council,Burlington N. & Santa Fe Ry. Co. v. United States and Shell Oil Co. v. United States (the latter two of which were consolidated). In all of these cases, the side favored by environmental groups had prevailed below, and in all of these cases the Supreme Court reversed. Equally notable, however, was that all but one of these cases (Entergy) came from the Ninth Circuit. To some the Supreme Court’s October 2008 term showed the Roberts Court lacked sympathy for environmentalist positions. To others, it was further evidence the Ninth Circuit was out of step on environmental issues.

2012 could provide a repeat of 2008 because the Supreme Court is being asked to grant cert in several cases from the Ninth Circuit that are potential outliers in environmental law.  As Richard Frank notes at Legal Planet, the Court will consider the such cases in tomorrow’s conference – Pacific Merchant Shipping Assn. v. GoldsteneGeorgia-Pacific West, Inc. v. Northwest Environmental Defense Center (along with Decker v. Northwest Environmental Defense Centeranother petition from the same case), and Los Angeles County Flood Control Dist. v. Natural Resources Defense Council –  all three of which have been identified among SCOTUSBlog’s “Petitions to Watch.”   Of note, the Solicitor General has recommended against cert in all three cases even though the Department of Justice believes the Ninth Circuit was wrong all three times.  According to the SG, each decision was wrong, but not cert-worthy.

In the normal course of affairs, an SG brief recommending against cert is a likely indicator that the Supreme Court will deny certiorari.  Yet that has not been the practice of late in environmental cases.  The Supreme Court has taken quite a few environmental cases in which the federal government lost below but nonetheless urged the Court to take pass, including EntergyCoeur Alaska,Monstanto v. Geerston Farms, and Environmental Defense v. Duke Energy.  It’s almost as if the Roberts Court does not trust the judgment of the SG’s office as to whether environmental cases are cert worthy.

Among the cases on the docket for tomorrow, Georgia-Pacific West v. Northwest Environmental Defense Center is worth some attention. In this case, the Ninth Circuit rejected the EPA’s judgment that stormwater runoff from timber roads do not need NPDES permits under the Clean Water Act.  This decision overturned years of settled practice, and industry’s cert petitions have been joined by numerous state and local government amici.  The petition has even gotten a boost from a somewhat unlikely source: Judge Milan Smith of the Ninth Circuit.  In a flowery en banc dissent in another case, Karuk Tribe of California v. USFS, Judge Smith identified the Ninth Circuit’s decision on logging roads as one of several wrong-headed opinions from his court.  Given the timing of his dissent (excerpted below the fold), it’s hard not to read it as a cert petition from the bench.  Monday we should learn if the Supreme Court heeded Judge Smith’s call — and perhaps whether the Ninth Circuit is due for another environmental correction. 

this is not the first time our court has broken from decades of precedent and created burdensome, entangling environmental regulations out of the vapors. In one of the most extreme recent examples, our court held that timber companies must obtain Environmental Protection Agency permits for stormwater runoff that flows from primary logging roads into systems of ditches, culverts, and channels. Nw. Envtl. Def. Ctr. v. Brown, 640 F.3d 1063 (9th Cir. 2011). In the nearly four decades since the Clean Water Act was enacted, no court or government agency had ever imposed such a requirement. Indeed, the EPA promulgated regulations that explicitly exempted logging from this arduous permitting requirement. Id. at 1073. Yet our court decided to disregard the regulation and require the permits.

The result? The imminent decimation of what remains of the Northwest timber industry. The American Loggers Council estimates that the decision, if implemented, will result in up to three million more permit applications nationwide. The timber industry is not the only group criticizing Brown. Three of Oregon’s leading politicians quickly attacked the ruling. Oregon U.S. Senator Ron Wyden predicted that this opinion “would shut down forestry on private, state and tribal lands by subjecting it to the same, endless cycle of litigation.” Oregon Congressman Kurt Schrader called the opinion a “bad decision” that would create “another layer of unnecessary bureaucracy.” Oregon Governor John Kitzhaber branded the opinion as “legally flawed.”

Oregon political leaders have good reason to be concerned about the impact of our rulings on logging. Decades of court injunctions already have battered the state’s timber industry, once a dominant employer that paid excellent wages. In the 1970s and 1980s, the wood product industry employed more than 70,000 Oregonians and paid 30 percent more than the state average wage. Now, the industry employs 25,000 people and pays the state average wage. Josh Lehner, Historical Look at Oregon’s Wood Product Industry, Oregon Office of Economic Analysis, Jan. 23, 2012, available at http://oregoneconomicanalysis.wordpress.com/2012/01/23/historical-look-at-oregons-wood-product-industry/ (last visited May 4, 2012). Requiring millions of burdensome new permits will only accelerate the decline.

Brown also profoundly harms rural local governments. Because counties receive twenty-five percent of the revenues from timber harvests on federal land, the decrease in logging has caused shorter school days, smaller police forces, and closures of public libraries. Moreover, Brown subjects rural counties to the burdensome permitting requirement if their roads are used for logging. The Association of Oregon Counties estimates that the decision will increase planning costs to Oregon counties by $56 million. . . .

No legislature or regulatory agency would enact sweeping rules that create such economic chaos, shutter entire industries, and cause thousands of people to lose their jobs. That is because the legislative and executive branches are directly accountable to the people through elections, and its members know they would be removed swiftly from office were they to enact such rules. In contrast, in order to preserve the vitally important principle of judicial independence, we are not politically accountable. However, because of our lack of public accountability, our job is constitutionally confined to interpreting laws, not creating them out of whole cloth. Unfortunately, I believe the record is clear that our court has strayed with lamentable frequency from its constitutionally limited role (as illustrated supra) when it comes to construing environmental law. When we do so, I fear that we undermine public support for the independence of the judiciary, and cause many to despair of the promise of the rule of law.

Cross-posted at the Volokh Conspiracy.
Jonathan Adler is Professor of Law and Director of the Center for Business Law & Regulation at the Case Western Reserve University School of Law. He is a prolific scholar, publishing on such topics as regulatory takings, water marketing, fisheries management, and the judicial limits of federal environmental regulation. He is the author,...
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