March 29, 2013
On March 20, 2013, the Supreme Court announced its decision in Decker v. Northwest Environmental Center, consolidated with Georgia-Pacific West, Inc. v. Northwest Environmental Defense Center. In both cases, the issues involve Environmental Protection Agency (EPA) regulations about Clean Water Act (CWA) requirements.
The first issue concerned the National Pollutant Discharge Elimination System, or NPDES, which provides for judicial review of rules that implement the CWA. The question was whether, notwithstanding the existence of the NPDES, a person may challenge the validity of a CWA rule by a different means; namely, a citizen-suit to enforce the CWA.
The second issue concerned stormwater from logging roads. The question was whether the Ninth Circuit correctly held that such stormwater is industrial under the CWA even though the EPA determined otherwise in its regulations--including a new rule issued the Friday before oral argument in this case.
In an opinion delivered by Justice Kennedy, the Court reversed the decision of the Ninth Circuit by a vote of 7-1 and remanded the case for further proceedings. On the first issue, the Court determined that a citizen-suit is permissible where, as here, it is brought against an alleged violator and seeks to enforce an obligation imposed by the CWA or its regulations. On the second issue, the Court held that the EPA’s interpretation of its own regulations was reasonable, and therefore entitled to deference under the Court’s decision in Auer v. Robbins.
Chief Justice Roberts, and Justices Thomas, Ginsburg, Alito, Sotomayor and Kagan joined Justice Kennedy’s majority opinion. Chief Justice Roberts filed a concurring opinion, which was joined by Justice Alito. Justice Scalia filed an opinion concurring in part and dissenting in part. Justice Breyer did not take part in the consideration or decision of the cases.
To discuss the consolidated cases, we have Daniel Himebaugh, a staff attorney in the Pacific Legal Foundations’ Pacific Northwest Center, where he focuses on land use and environmental litigation.'