On November 3, 2012 the Supreme Court heard oral argument 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 concerns the National Pollutant Discharge Elimination System, or NPDES, which provides for judicial review of rules that implement the CWA. The question is 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 concerns stormwater from logging roads. The question is 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.
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.