WSJ: More Ninth Circuit Mayhem

A ruling by the whacky Ninth Circuit Court of Appeals would allow enviros to shut down logging by requiring road stormwater run-off to be managed by logging-stopping permitting rather than logging-enabling “best practices.”

The Wall Street Journal editorializes,

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. That list would include Oregon, Washington, Idaho, California, Nevada and Montana.

As a legal matter, the Ninth Circuit’s decision was a particularly blatant power grab in the kind of matter traditionally left to an agency with specific judgment and knowledge. In deciding environmental complaint cases, courts are supposed to defer to the Environmental Protection Agency, as long as the agency has acted reasonably.

In the case of the logging roads, the non-point source classification represented 35 years of consistent interpretation by the EPA, that storm-water runoff was “better controlled through the utilization of best management practices” and “ill-suited for inclusion in a permit program.” After Congress amended the law in 1987, the agency again rejected including logging roads in the category for heavy industrial pollutants.

The interpretation has been confirmed by two other circuits, but if the Ninth Circuit’s wacky ruling is allowed to stand it will impose major economic burdens and a litigation free-for-all in the Pacific Northwest. No doubt some Supreme Court Justices are frustrated that they must keep playing janitor after the legal elephant parade that is the Ninth Circuit, but no one else has the authority. We hope the High Court takes the case.

Read the Wall Street Journal editorial (subscription required).

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