New EPA rule could upend Clean Water case

WASHINGTON — Chief Justice John G. Roberts Jr. did not seem happy during a Supreme Court argument Monday about whether the Clean Water Act applies to runoff from logging roads. The source of his frustration was a last-minute action from the Environmental Protection Agency that was calculated to address the legal issues before the court.

‘‘Were you as surprised as we were?’’ Roberts asked a lawyer for the government, referring to a new regulation, issued Friday afternoon, that said permits are not required for the runoff at issue in the case.

The lawyer, Malcolm L. Stewart, said his office had known that the measure was ‘‘a strong possibility’’ since early November. The chief justice said it would have been nice to have heard about that. ‘‘Maybe in the future,’’ he told Stewart, ‘‘you could let us know.’’


Stewart acknowledged that ‘‘obviously, it’s suboptimal for the new rule to be issued the Friday before oral argument.’’

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‘‘But, it would have been even worse, I think,’’ he went on, ‘‘from the standpoint of the parties and the court’s decision-making processes if the rule had been issued a week or two after the court heard oral argument.’’

The regulatory development, if not its exact timing, could not have come as a complete surprise to the justices. In May, the government urged the court not to hear the case, in part because the agency was considering new rules.

Much of Monday’s argument was devoted to the consequences of the new regulation for the consolidated cases before the justices, Decker v. Northwest Environmental Defense Center and Georgia-Pacific West v. Northwest Environmental Defense Center. They arose from suits against logging companies and Oregon forestry officials under the Clean Water Act, saying the defendants were required to get permits for runoff from logging roads that ran through ditches and culverts.

The EPA has long taken the opposite view, and the ultimate answer to whether the Clean Water Act applies to hundreds of thousands of miles of logging roads is quite consequential, as it could provide a tool for conservationists to block logging where silty runoff would choke forest streams. But it seemed on Monday that even a partial answer would have to wait.