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Supreme Court rules stormwater pollution case can proceed

The US Supreme Court [official website] ruled 8-0 Wednesday in Decker v. Northwest Environmental Defense Center (NDEC) [opinion, PDF; JURIST report] that 33 USC § 1369 [text] of the Clean Water Act (CWA) [materials] is not a jurisdictional bar to suits seeking to invalidate certain agency decisions, and an amendment to regulations made by the Environmental Protection Agency (EPA) [official website] does not render a case moot when a litigant may be held liable for unlawful discharges under an earlier version of the regulations. The case was based on whether a business was required to obtain a permit under the National Pollutant Discharge Elimination System (NPDES) [materials] administrated by the EPA for stormwater runoff from the roads of logging operations. NDEC brought the suit under 33 USC § 1365 [text], the section of the CWA permitting citizen lawsuits. Justice Anthony Kennedy wrote for the court, "[§ 1369] 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 opinion continued:

For jurisdictional purposes, it is unnecessary to determine whether NEDC is correct in arguing that only its reading of the [regulations] is permitted under the Act. It suffices to note that NEDC urges the Court to adopt a "purposeful but permissible reading of the regulation ... to bring it into harmony with ... the statute." NEDC does not seek "an implicit declaration that the ... regulations were invalid as written." And, as a result, § 1369(b) is not a jurisdictional bar to this suit.
The opinion went on to address the argument that the regulations, amended shortly before Supreme Court oral arguments in the case, render the case moot. Kennedy wrote, "the [case] remain[s] live and justiciable, for the possibility of some remedy for a proven past violation is real and not remote." The opinion then turned to the substantive issue of whether NPDES permits should be required for "industrial stormwater runoff" from logging activities.

The court granted deference to the EPA ruling that logging was the extraction of raw materials, and did not constitute industrial activity as described by the pre-amendment regulations. In doing so, the court reversed the holding [opinion, PDF] of the US Court of Appeals for the Ninth Circuit. Justice Breyer took no part in the consideration or decision of the case.

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