Decker v. Northwest Environmental Defense Center, 133 S. Ct. 1326 (2013)
Decker v. Northwest Environmental Defense Center, 133 S. Ct. 1326 (2013)
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
The Clean Water Act (Act) requires that National Pollutant Discharge
Elimination System (NPDES) permits be secured before pollutants
are discharged from any point source into the navigable waters of the
United States. See 33 U. S. C. 1311(a), 1362(12). One of the Environmental Protection Agencys (EPA) implementing regulations, the
Silvicultural Rule, specifies which types of logging-related discharges
are point sources. 40 CFR 122.27(b)(1). These discharges require
NPDES permits unless some other federal statutory provision exempts them from coverage. One such statutory provision exempts
discharges composed entirely of stormwater, 33 U. S. C.
1342(p)(1), unless the discharge is associated with industrial activity, 1342(p)(2)(B). Under the EPAs Industrial Stormwater Rule,
the term associated with industrial activity covers only discharges
from any conveyance that is used for collecting and conveying storm
water and that is directly related to manufacturing, processing or
raw materials storage areas at an industrial plant. 40 CFR
122.26(b)(14). Shortly before oral argument in the instant cases, the
EPA issued a final version of an amendment to the Industrial
Stormwater Rule, clarifying that the NPDES permit requirement applies only to logging operations involving rock crushing, gravel washing, log sorting, and log storage facilities, which are all listed in the
Silvicultural Rule.
Petitioner Georgia-Pacific West has a contract with Oregon to har
* Together with No. 11347, Georgia-Pacific West, Inc., et al. v.
Northwest Environmental Defense Center, also on certiorari to the same
court.
Syllabus
vest timber from a state forest. When it rains, water runs off two
logging roads used by petitioner into ditches, culverts, and channels
that discharge the water into nearby rivers and streams. The discharges often contain large amounts of sediment, which evidence
shows may be harmful to fish and other aquatic organisms. Respondent Northwest Environmental Defense Center (NEDC) filed
suit against petitioner and state and local governments and officials,
including petitioner Decker, invoking the Acts citizen-suit provision,
33 U. S. C. 1365, and alleging that the defendants had not obtained
NPDES permits before discharging stormwater runoff into two Oregon rivers. The District Court dismissed the action for failure to
state a claim, concluding that NPDES permits were not required because the ditches, culverts, and channels were not point sources of
pollution under the Act and the Silvicultural Rule. The Ninth Circuit
reversed. It held that the conveyances were point sources under the
Silvicultural Rule. It also concluded that the discharges were associated with industrial activity under the Industrial Stormwater
Rule, despite the EPAs contrary conclusion that the regulation excludes the type of stormwater discharges from logging roads at issue.
Thus, the court held, the discharges were not exempt from the
NPDES permitting scheme.
Held:
1. A provision of the Act governing challenges to agency actions,
1369(b), is not a jurisdictional bar to this suit. That provision is the
exclusive vehicle for suits seeking to invalidate certain agency decisions, such as the establishment of effluent standards and the issuance of permits. It does not bar a district court from entertaining a
citizen suit under 1365 when the suit is against an alleged violator
and seeks to enforce an obligation imposed by the Act or its regulations. The present action falls within the scope of 1365. Pp. 89.
2. The EPAs recent amendment to the Industrial Stormwater Rule
does not make the cases moot. A live controversy continues to exist
regarding whether petitioners may be held liable for unlawful discharges under the earlier version of the Industrial Stormwater Rule.
That version governed petitioners past discharges, which might be
the basis for the imposition of penalties even if, in the future, those
types of discharges will not require a permit. These cases thus remain live and justiciable. See Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U. S. 49, 6465. The fact that the
District Court might rule that NEDCs arguments lack merit, or that
relief is not warranted on the facts of these cases, does not make the
cases moot. Pp. 911.
3. The preamendment version of the Industrial Stormwater Rule,
as permissibly construed by the EPA, exempts discharges of chan-
Syllabus
neled stormwater runoff from logging roads from the NPDES permitting scheme. The regulation is a reasonable interpretation of the
statutory term associated with industrial activity, 1342(p)(2)(B),
and the agency has construed the regulation to exempt the discharges
at issue here. When an agency interprets its own regulation, the
Court, as a general rule, defers to it unless that interpretation is
plainly erroneous or inconsistent with the regulation. Chase Bank
USA, N. A. v. McCoy, 562 U. S. ___, ___ (quoting Auer v. Robbins, 519
U. S. 452, 461). Here, it was reasonable for the EPA to conclude that
the conveyances at issue are directly related only to the harvesting
of raw materials, rather than to manufacturing, processing, or raw
materials storage areas at an industrial plant.
40 CFR
122.26(b)(14). The regulatory scheme, taken as a whole, leaves open
the rational interpretation that the regulation extends only to traditional industrial buildings such as factories and associated sites and
other relatively fixed facilities.
Another reason to accord Auer deference to the EPAs interpretation is that there is no indication that the agencys current view is a
change from prior practice or is a post hoc justification adopted in response to litigation. See Christopher v. SmithKline Beecham Corp.,
567 U. S. ___, ___. Rather, the EPA has been consistent in its view
that the types of discharges at issue do not require NPDES permits.
Its decision also exists against a background of state regulation with
respect to stormwater runoff from logging roads. In exercising the
broad discretion the Act gives the EPA in the realm of stormwater
runoff, the agency could reasonably have concluded that further federal regulation would be duplicative or counterproductive in light of
Oregons extensive rules on the subject. Pp. 1115.
640 F. 3d 1063, reversed and remanded.
KENNEDY, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and THOMAS, GINSBURG, ALITO, SOTOMAYOR, and KAGAN, JJ.,
joined, and in which SCALIA, J., joined as to Parts I and II. ROBERTS,
C. J., filed a concurring opinion, in which ALITO, J., joined. SCALIA, J.,
filed an opinion concurring in part and dissenting in part. BREYER, J.,
took no part in the consideration or decision of the cases.
(rock crushing, gravel washing, log sorting, and log storage facilities) that are defined as point sources by the
explicit terms of the Silvicultural Rule.
Up to this stage in the litigation, of course, the cases
have been concerned with the Industrial Stormwater Rule
before the amendment adopted on November 30, 2012.
The amended regulation will determine whether from this
point forward NPDES permits will be required for the
stormwater discharges at issue. The parties disagree
about the significance of the amended rule for purposes of
these cases. Before reaching this and other preliminary
points, however, it is appropriate to set forth the facts and
history of the cases leading to the proceedings in this
Court.
B
At issue are discharges of channeled stormwater runoff
from two logging roads in Oregons Tillamook State Forest, lying in the Pacific Coast Range about 40 miles west
of Portland. Petitioner Georgia-Pacific West, along with
other logging and paper-products companies, has a contract with the State of Oregon to harvest timber from the
forest. It uses the roads for that purpose. When it rains
(which it does often in the mountains of northwest Oregon,
averaging in some areas more than 100 inches per year),
water runs off the graded roads into a system of ditches,
culverts, and channels that discharge the water into
nearby rivers and streams. The discharges often contain
large amounts of sediment, in the form of dirt and crushed
gravel from the roads. There is evidence that this runoff
can harm fish and other aquatic organisms.
In September 2006, respondent Northwest Environmental Defense Center (NEDC) filed suit in the United States
District Court for the District of Oregon. It invoked the
Clean Water Acts citizen-suit provision, 33 U. S. C. 1365,
and named as defendants certain firms involved in log-
CENTER
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nomic activity concerned with the processing of raw materials and manufacture of goods in factories. Oxford Dict.
887. The latter definition does not necessarily encompass
outdoor timber harvesting. The statute does not foreclose
more specific definition by the agency, since it provides no
further detail as to its intended scope.
Somewhat more plausible is NEDCs claim that the
preamendment version of the Industrial Stormwater Rule
unambiguously required a permit for the discharges at
issue. NEDC reasons that under the rule, [f]or the categories of industries identified in this section, NPDES
permits are required for, among other things, storm
water discharges from . . . immediate access roads . . . used
or traveled by carriers of raw materials.
40 CFR
122.26(b)(14) (2006). Yet this raises the question whether logging is a categor[y] of industr[y] identified by the
section. The regulation goes on to identify a list of categories of facilities that are considered to be engaging in
industrial activity for purposes of the Industrial Stormwater Rule. Ibid. In the earlier version of the regulation,
this list included [f]acilities classified as Standard Industrial Classificatio[n] 24, which encompasses Logging.
Ibid. See also supra, at 45. Hence, NEDC asserts, logging is among the categories of industries for which storm
water discharges from . . . immediate access roads . . . used
or traveled by carriers of raw materials required NPDES
permits under the earlier version of the Industrial Stormwater Rule. 122.26(b)(14). NEDC further notes, in support of its reading of the regulation, that modern logging is
a large-scale, highly mechanized enterprise, using sophisticated harvesting machines weighing up to 20 tons. See
Brief for Respondent 45.
The EPA takes a different view. It concludes that the
earlier regulation invoked Standard Industrial Classification 24 to regulate traditional industrial sources such
as sawmills. Brief for United States as Amicus Curiae
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CENTER
inof
part
and,dissenting
in part
SCALIA, J., concurring
J.
Opinion
SCALIA
inof
part
and,dissenting
in part
SCALIA, J., concurring
J.
Opinion
SCALIA
inof
part
and,dissenting
in part
SCALIA, J., concurring
J.
Opinion
SCALIA
inof
part
and,dissenting
in part
SCALIA, J., concurring
J.
Opinion
SCALIA
inof
part
and,dissenting
in part
SCALIA, J., concurring
J.
Opinion
SCALIA
inof
part
and,dissenting
in part
SCALIA, J., concurring
J.
Opinion
SCALIA
inof
part
and,dissenting
in part
SCALIA, J., concurring
J.
Opinion
SCALIA
inof
part
and,dissenting
in part
SCALIA, J., concurring
J.
Opinion
SCALIA
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inof
part
and,dissenting
in part
SCALIA, J., concurring
J.
Opinion
SCALIA
12