On Dec. 3, the Supreme Court will hear a case determining the future of more than 2 million jobs and tens of thousands of landowners.
Georgia-Pacific West v. Northwest Environmental Defense Center concerns a technical issue of law with enormous economic implications. The question to be answered is whether logging roads should be regulated under the Clean Water Act’s permit-granting procedures or, as they currently are, under federal “best management practices” (BMP) rules. Either way, they will be regulated by state agencies with federal oversight.
Logging is an almost invisible activity for most Americans. For small forest owners such as my family, for our co-petitioners and for the 2.5 million Americans whose jobs directly depend on it, logging is our lives. My family’s firm is a significant exporter of wood products, while logging itself is the economic driver for thousands of communities nationwide. In August 2010, a three-judge panel for the 9th U.S. Circuit Court of Appeals took direct aim at this industry and all who work in it.
The panel ruled that 35 years of Clean Water Act regulation had been wrong. Since 1976, the Environmental Protection Agency has said that logging roads and forestry come under the sections of the law that govern agriculture, meaning states regulate them with federal oversight using BMPs. John Gordon, former dean of the Yale School of Forestry and Environmental Studies, has written that this system has produced “vast improvements in all aspects of forest engineering as well as research on fish and wildlife habitat and protection of riverbanks and the areas around them.” Using what he calls the “continuous process improvement” of BMPs, “regulators and public and private forest managers have incorporated these findings into their standards.”
The 9th Circuit panel threw out all this history. It found that every drainage ditch and culvert on every forest road used by a logger could qualify as a “point source” under the Clean Water Act. Effectively, each pipe and channel directing water sooner or later to a fish-bearing stream must receive a federal permit to operate.
The difference between the BMP and permit systems is simple. BMPs emphasize results. Forest owners and regulators cooperate to make and measure improvements (such as keeping culverts clear of debris so stormwater doesn’t dam up), learning and adapting as new information becomes available. In contrast, permits put a premium on litigation and obstruction.
Congress intended the permitting process to govern concentrated, as the law puts it, “industrial activity,” such as factories and processing plants. Because those facilities typically involve a small number of discharge pipes that may release dangerous or even toxic substances, Congress built a fail-safe mechanism into the legislation. It allowed public challenges and citizen suits to block permits. In Georgia-Pacific West, we are talking about natural sediment, not human filth or toxic effluent.
Forest roads could not be less suited to permitting. For example, Washington state has 7.3 million acres of private and state-held woodlands, with roughly 57,000 miles of road. At one permit per mile and $2,800 in state-agency processing costs per permit, the state could be looking at a bill of as much as $159.6 million just to do the paperwork.
The process probably will break down before any permit is issued. Within days of the 9th Circuit’s ruling, environmental groups announced plans to file follow-on suits. A flood of litigation is certain to cascade into the courts if the justices confirm the 9th Circuit decision. The result will be regulatory paralysis. Sen. Ron Wyden, Oregon Democrat, has said that letting the decision stand “would shut down forestry on private, state and federal lands.” The Forest Service has warned that it “may eventually affect all entities involved in resource management, whether private, state or federal.” Judge Milan Smith of the 9th Circuit, who was not on the Georgia-Pacific West panel, has written of his colleagues’ ruling and whether it was faithful to congressional intent, “No legislature or regulatory agency would enact sweeping rules that create such economic chaos.”
Meanwhile, we who love the nation’s forests and depend on them for our livelihood wait as the justices hold our future in their hands. Could the high court concur in the environmentally counterproductive and economically catastrophic 9th Circuit action? We hope and pray not.
David Hampton and his family own Hampton Affiliates, a logging and wood-products company.