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The New York Times: "E.P.A. rule complicates runoff case for justices"

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December 3, 2012 -- Last minute action from the Environmental Protection Agency complicates logging roads case.

By Adam Liptak

WASHINGTON — Chief Justice John G. Roberts Jr. did not seem happy during a Supreme Court argument on Monday about whether the Clean Water Act applies to runoff from logging roads. The source of his frustration was a last-minute action from the Environmental Protection Agency that was expressly calculated to address the legal issues before the court.

“Were you as surprised as we were?” Chief Justice Roberts asked a lawyer for the government, referring to a new regulation, issued Friday afternoon, that said permits are not required for the runoff at issue in the case.

The lawyer, Malcolm L. Stewart, said his office had known the measure was “a strong possibility” since early November.

The chief justice said it would have been nice to have heard about that. “Maybe in the future,” he told Mr. Stewart, “you could let us know.”

“There were 875 pages on the merits briefing in this case,” the chief justice added, “and if we knew that the final rule was imminent, we could have rescheduled the case for April or something along those lines.”

Mr. Stewart acknowledged that “obviously, it’s suboptimal for the new rule to be issued the Friday before oral argument.”

“But, it would have been even worse, I think,” he went on, “from the standpoint of the parties and the court’s decision-making processes if the rule had been issued a week or two after the court heard oral argument.”

The regulatory development, if not its exact timing, could not have come as a complete surprise to the justices. In May, the government urged the court not to hear the case, in part because the agency was considering new rules.

The back-and-forth on Monday followed a similarly testy exchange between Chief Justice Roberts and another government lawyer last week in US Airways v. McCutchen, No. 11-1285, a case about when health plans must be paid back from injury awards. In that case, the chief justice chastised Joseph R. Palmore for saying in a brief that the secretary of labor had changed a legal position “upon further reflection.”

“That is not the reason,” Chief Justice Roberts said. “It wasn’t further reflection. We have a new secretary under a new administration.”

“We are seeing a lot of that lately,” he added, calling the government’s advocacy “a little disingenuous.”

Much of the argument on Monday was devoted to the consequences of the new environmental regulation for the two consolidated cases before the justices, Decker v. Northwest Environmental Defense Center, No. 11-338, and Georgia-Pacific West v. Northwest Environmental Defense Center, No. 11-347. They arose from suits against logging companies and Oregon forestry officials under the Clean Water Act, saying the defendants were required to obtain permits for runoff from logging roads that ran through ditches and culverts.

The E.P.A. has long taken the opposite view, and the ultimate answer to whether the Clean Water Act applies to hundreds of thousands of miles of logging roads is quite consequential, as it could provide a tool for conservationists to block logging where silty runoff would choke forest streams. But it seemed on Monday that even a partial answer would have to wait.

Mr. Stewart, the government lawyer, urged the court to dismiss the case as moot.

His ostensible ally, Timothy S. Bishop, a lawyer for several lumber companies, took a different approach, asking the court to decide the case anyway.

Chief Justice Roberts asked why that was needed, given that his clients were “getting almost all the relief they’re looking for under the new rule issued on Friday.”

Mr. Bishop said the court should address the meaning of a provision of the Clean Water Act underlying the regulation. Justice Ruth Bader Ginsburg responded that the question had not been addressed by the appeals court.

“This court is a court of review, not first view,” she said, “and we don’t take questions that haven’t been aired below.”

Jeffrey L. Fisher, a lawyer for the environmental group, asked the justices simply to dismiss the appeal and let the lower courts sort things out. He added that the new regulations only added further complications and ambiguities.

Justice Stephen G. Breyer did not participate in Monday’s argument. Judge Charles R. Breyer, his brother, had sat on the appeals court panel whose decision was under review.