Scalia Assails Agency Deference in Water Fight

     WASHINGTON (CN) – The Supreme Court sided against environmentalists in a fight over water pollution Wednesday, sparking an impassioned call from Justice Antonin Scalia to rethink the doctrine of agency deference.
     The Clean Water Act and its implementing regulations require a permit before industry-associated stormwater runoff can be discharged into the navigable waters of the United States.
     Tasked with defining that association, the Environmental Protection Agency has interpreted the regulation to exclude runoff from logging roads.
     The Northwest Environmental Defense Center claimed in a 2006 federal complaint, however, that logging and paper companies were discharging polluted water without a permit into the South Fork Trask River and the Little South Fork Kilchis River.
     It said Georgia-Pacific West and other companies are responsible because they use logging roads to harvest timber from Oregon’s Tillamook State Forest, lying in the Pacific Coast range about 40 miles west of Portland.
     With some areas of Oregon averaging more than 100 inches of rain per year, the environmentalists said that water runs off the logging companies’ graded roads into a system of ditches, culverts and channels that empty into nearby rivers and streams.
     Evidence shows that the runoff can harm fish and other aquatic organisms,
     In dismissing the action, a federal judge concluded that the ditches, culverts and channels were not point sources of pollution under the Clean Water Act and another regulation known as the Silvicultural Rule.
     The 9th Circuit reversed, however, after finding that a federal law does not limit judicial review of the act; that the Silvicultural Rule in ambiguous; and that the discharges here are “associated with an industrial activity.”
     About five months after the Supreme Court took up the case in June 2012, the EPA issued its final version of an amendment to the Industrial Stormwater Rule, the regulation that defines the term “associated with industrial activity.”
     A majority of justices noted Wednesday that the amended regulation aimed to certain logging operations within the permitting scheme of the National Pollutant Discharge Elimination System, or NPDES.
     They said the amendment has not made the dispute moot since Georgia-Pacific could still be held liable for the earlier discharges that the 9th Circuit deemed unlawful.
     Furthermore, the environmentalists claim that the discharges are unlawful under both the amended regulation and its earlier version.
     The majority also agreed with the lower court as to jurisdiction and the ambiguity of the Silvicultural Rule.
     They reversed, however, after finding that “the EPA’s determination is a reasonable interpretation of its own regulation; and, inconsequence, deference is accorded to the interpretation.”
     Justice Anthony Kennedy wrote the majority opinion, which was nearly unanimous.
     Though Justice Antonin Scalia agreed with his colleagues as to mootness and ambiguity, he said the EPA did not deserve deference.
     “Enough is enough,” Scalia wrote.
     “For decades, and for no good reason, we have been giving agencies the authority to say what their rules mean, under the harmless-sounding banner of ‘defer[ring] to an agency’s interpretation of its own regulations.”
     Scalia said it is time to reconsider the holding that affords such deference, which was established with the 1945 case Bowles v. Seminole Rock & Sand Co., and the 1997 case Auer v. Robbins.
     “This is especially true because the circumstances of these cases illustrate Auer‘s flaws in a particularly vivid way,” he added.
     The dissent distinguishes Auer from its statutory counterpart, Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc., with some highlights from William Blackstone and a Federalist Papers essay by Alexander Hamilton.
     “Combining the power to prescribe with the power to inter­pret is not a new evil: Blackstone condemned the practice of resolving doubts about ‘the construction of the Roman laws’ by “stat[ing] the case to the emperor in writing, and tak[ing] his opinion upon it,'” Scalia wrote. “Blackstone, and our Consti­tution did not mirror the British practice of using the House of Lords as a court of last resort, due in part to the fear that he who has ‘agency in passing bad laws’ might operate in the ‘same spirit’ in their interpretation. Auer deference encourages agencies to be ‘vague in framing regulations, with the plan of issuing ‘interpretations’ to create the intended new law without observance of notice and comment procedures.’ Auer is not a logical corollary to Chevron but a dangerous permission slip for the arrogation of power.”
     Scalia concludes by saying that the fairest handling of the case would find that the discharges came from point sources and were associated with industrial activity.
     “Because the fairest reading of the agency’s rules pro­scribes the conduct at issue in these cases, I would affirm the judgment below. 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,” he wrote.
     Chief Justice John Roberts and Justice Samuel Alito, both of whom joined the majority in full, shot down Scalia in a brief concurring opinion.
     “It may be ap­propriate to reconsider that [Auer] principle in an appropriate case,” Roberts wrote. “But this is not that case.”
     “The issue is a basic one going to the heart of administra­tive law,” he added. “Questions of Seminole Rock and Auer deference arise as a matter of course 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.
     “I would await a case in which the issue is properly raised and argued. The present cases should be decided as they have been briefed and argued, under existing precedent.”
     Justice Stephen Breyer took no part in the consideration or decision of the cases.

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