Two major Ninth Circuit decisions will be reviewed by the Supreme Court, which means that those decisions are almost surely in danger of being overturned.
The cases are Los Angeles County Flood Control Dist. v. Natural Resources Defense Council (11-460) and a pair of consolidated petitions, Decker v. Northwest Environmental Defense Center (11-338) and Georgia-Pacific West Inc. v. Northwest Environmental Defense Center (11-347).
Los Angeles County Flood Control Dist. v. Natural Resources Defense Council arises out of a Ninth Circuit decision interpreting the Clean Water Act’s NPDES permit requirements expansively. In its 2011 opinion, the Court of Appeals ruled that Los Angeles County must obtain permits for urban runoff that collects in channelized river systems maintained and “improved” by county flood control agencies.
Decker v. Northwest Environmental Defense Center, No. 11-338, and Georgia-Pacific West, Inc. v. Northwest Environmental Defense Center, No. 11-347, are consolidated petitions challenging a controversial 2010 Ninth Circuit decision. That opinion concluded that channelized stormwater runoff from logging roads that eventually flows into streams and rivers requires an NPDES permit from federal regulators under the Clean Water Act. In so ruling, the Court of Appeals held that EPA’s so-called silviculture rule does not exempt such logging-related runoff from the Act’s permit requirements.
In both cases, as noted by Frank, the court sought the opinion of the Solicitor General. A lot of good that did the government: The court rejected the recommendations of the Obama Administration’s top lawyer to deny certiorari of each decision.
I don’t think I’m going out on a limb here in predicting that the Ninth Circuit’s decision to mandate that logging runoff be regulated as industrial stormwater will not survive its date with the justices this fall.
Incidentally — or perhaps not incidentally — Justice Stephen Breyer recused himself from consideration of the petitions. I assume that means he won’t be participating in oral argument either, but have sent an email to the Public Information Office of the Supreme Court in an attempt to ascertain that information.
My best guess as to why Breyer recused himself — and why he likely would continue to remain “recused” — is that his brother, U.S. District Judge Charles R. Breyer from the Northern District of California, sat by designation on the Ninth Circuit panel that issued the decision.