A Logging road in the Tillamook State Forest. Image from CRAG Law Center post, 09-07-2012, www.crag.org.

A Logging road in the Tillamook State Forest. Image from CRAG Law Center post, 09-07-2012, http://www.crag.org.

On March 20, 2013, the United States Supreme Court issued a 7-1 majority decision, written by Justice Kennedy, upholding EPA’s application of its “Silvicultural Rule,” 40 C.F.R. § 122.27, under the Clean Water Act (CWA). Decker v. Northwest Environmental Defense Center (NEDC), Nos. 11-338, 11-347. The Rule requires an NPDES permit for certain types of logging-related discharges unless they are exempted by statute. One such statutory provision exempts “discharges composed entirely of stormwater” unless the discharge is “associated with industrial activity.” 33 U.S.C. § 1342(p)(1). The Court held that EPA’s interpretation of its own rule defining “associated with industrial activity” (40 C.F.R. § 122.26(b)(14), the “Industrial Stormwater Rule”) as not applying to discharges of channelized stormwater runoff from logging roads was permissible; and that under Auer v. Robbins, 519 U.S. 452 (1997), the Court must defer to EPA’s interpretation of its own rule unless the interpretation is plainly erroneous or inconsistent with the regulation.

Significantly, NEDC brought its claim challenging EPA’s interpretation of the Industrial Stormwater Rule under the CWA’s citizen suit provision in section 505, which is usually reserved for targeting facilities’ permit violations. Section 509 is the more typical, and often the exclusive, provision for challenges to EPA rules. However, whereas challenges under section 509 must be filed within 120 days of a rule’s promulgation—a period that had long since expired in this case—citizen suits under section 505 may be filed at any time after an alleged violation. The Court agreed with NEDC that federal district courts have jurisdiction under section 505 to hear lawsuits challenging how regulations are being implemented, provided such lawsuits allege that the regulation being challenged is ambiguous and being misinterpreted, rather than seeking “an implicit declaration that the . . . regulations were invalid as written.”

In lengthy dissent, Justice Scalia disagreed with Justice Kennedy on the issue of deference to an agency’s interpretation of its own rules and called for an outright overturning of Auer v. Robbins. Scalia argued an agency should not be permitted to both write and interpret regulations; such an arrangement creates an incentive for the agency to promulgate vague regulations and then implement the specifics through interpretations, outside the notice-and-comment process.

Auer, wrote Scalia, “contravenes one of the great rules of separation of powers: He who writes a law must not adjudge its violation.”

Justice Scalia Suggests Overturning "Auer v. Robbins" (Image from www.law.cornell.edu)

Justice Scalia Suggests Overturning “Auer v. Robbins” (www.law.cornell.edu)