Following outrage over its Keystone Pipeline decision, the Obama administration faces another choice pitting green activists against American workers. This time, siding with environmental activists would actively hurt the environment.
The case — Georgia-Pacific West v. Northwest Environmental Defense Center — challenges long-established Clean Water Act rules about runoff from logging roads. In May, the Ninth Circuit Federal Court of Appeals determined that these roads come under the same section of the law as factories, mines, and chemical plants, not — as had been understood since passage in 1972 and amendment in 1987 — the section governing agriculture. The difference is that industrial facilities must obtain permits, which involve rigid rules and long reviews, and can be challenged in court. Agricultural regulations emphasize results, not lawsuits.
In December, the Supreme Court asked for the Justice Department’s opinion on whether to hear the case. Solicitor General Donald B. Verrilli Jr. will file a brief in the next few weeks. If the Supreme Court decides not to hear the case, the interpretation of the Ninth Circuit will become the law throughout California, Oregon, Washington, Idaho, Montana, Nevada, Arizona, Alaska, and Hawaii.
The economic stakes are huge. Industrial facilities must obtain a permit for every pipe that empties into a lake, river, or stream. For a factory or chemical plant it is a relatively simple job to identify these discharge points, impose pollution controls, and measure the quality of water draining from them. Forest roads are different.
Washington State, for example, has 57,000 miles of them, with at least one drain point per mile. But now the Circuit Court panel has decreed that each flow-way must be permitted or shut down. By one estimate, processing a single Clean Water Act approval costs a state $2,800, meaning the decision could saddle Washington alone with a $159.6 million bill.
Worse, if every ditch and drain is a potential cause of action, a paralyzing volume of litigation will follow, bringing the West’s logging industry to its knees. In fact, three days after the Ninth Circuit acted, activists announced plans for follow-on suits. Congress has since halted permit processing until the fall, to give the Supreme Court time for review. As Senator Ron Wyden (D., Ore.) has said, allowing the decision to stand would “shut down forestry on private, state, and tribal lands” in the states in which it applies.
Endangered, too, will be thousands of resorts, ranches, and communities scattered amid the circuit’s forestlands and dependent on the same roads loggers use. Controlling forest fires will become harder, posing even greater threats to everyone nearby as well as to firefighters. And regional sawmills, paper mills, and all who depend on western wood will suffer. By some estimates as many as a million jobs are in jeopardy.
For what? Not environmental protection.
The current use of “best management practices” is better for minimizing silting of lakes and streams than permitting every ditch and culvert (as the ruling mandates) or shutting down logging roads and reducing vital access to huge forested areas (as it would inevitably do).