Supreme Court rejects environmentalists' plea: why Scalia dissented

Logging companies do not need a federal permit regulating rainwater flowing off logging roads in an Oregon state forest, the US Supreme Court ruled Wednesday.

The 7-1 decision appears to have set the stage for a future high court showdown over the extent of judicial deference due when a federal agency interprets its own rules.

Wednesday’s opinion ends a legal battle first launched in 2006 by the Northwest Environmental Defense Center.

The environmental group sought to force the Environmental Protection Agency to take action against the logging company, Georgia-Pacific West, for storm-water runoff that carried heavy sediment into two rivers flowing through Oregon’s Tillamook State Forest.

The group said EPA regulations cover the runoff, and that the agency was ignoring its own rules. EPA officials disagreed.

A federal judge dismissed the lawsuit. But a panel of the Ninth US Circuit Court of Appeals reversed, ruling with the environmental group that storm-water runoff fell within the ambit of EPA regulations.

In response to the appeals court decision, the EPA issued amended regulations to clarify that storm-water runoff from logging roads was not a form of industrial pollution and thus did not require a permit.

Writing for the court, Justice Anthony Kennedy said courts generally defer to a federal agency’s interpretation of its own regulation.

“It is well established that an agency’s interpretation need not be the only possible reading of a regulation – or even the best one – to prevail,” Justice Kennedy wrote in the 16-page decision.

“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,” he said. “The EPA’s interpretation is a permissible one.”

In a 12-page dissent, Justice Antonin Scalia said the court had ignored the clearest and fairest reading of the EPA regulation. Under that reading, logging companies would be required to obtain an EPA permit governing storm-water runoff from logging roads, he said.

Justice Scalia said the court focused on the agency’s intent to avoid regulating storm-water runoff instead of examining the text of underlying statutes and regulations.

That permissive approach by the court, he said, would allow regulatory agencies to float free of limits and bounds contained in the text of its rules.

Scalia said allowing an agency to interpret its own regulations “contravenes one of the great rules of separation of powers: He who writes a law must not adjudge its violation.”

“In the end, this is the real meat of the matter,” he said. “EPA states that it simply did not mean to require permits for the discharges at issue here. And the Court is willing to credit that intent, even given what I think has been amply demonstrated to be a contrary text.”

Scalia urged the high court to reevaluate its approach to granting deference to an agency’s own interpretation of a regulation. “It is time for us to presume (to coin a phrase) that an agency says in a rule what it means, and means in a rule what it says there.”

Writing separately, Chief Justice John Roberts and Justice Samuel Alito noted that Scalia had raised “serious questions” about legal precedents calling for judicial deference to regulatory agencies.

“It may be appropriate to reconsider that principle in an appropriate case,” the chief justice wrote. “But this is not that case.”

He added that the issue goes to the heart of administrative law and arises on a regular basis. “The bar is now aware that there is some interest in reconsidering those cases, and has available to it a concise statement of the arguments on one side of the issue,” Roberts said.

Justice Stephen Breyer did not participate in the case because his brother, a federal judge, was involved in deciding an earlier stage of the litigation.

The case is Decker v. Northwest Environmental Defense Center (11-338 and 11-347).