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Stormwater case about to end?

The Supreme Court on Tuesday told lawyers in an already-argued case to file new briefs on the impact on the case of a new stormwater drainage rule issued by the federal government.  The combined petitions in Decker v. Northwest Environmental Defense Center (11-338) and Georgia-Pacific West v. Northwest Environmental Defense Center (11-347)  had been heard on December 3, and at that time the Justices indicated they were puzzled about pursuing the case after a new Environmental Protection Agency rule had just been issued.  (A post on the oral argument can be found here.)

The case tests whether the federal Clean Water Act requires timber companies and forest operators to get a federal permit before they discharge into rivers and streams the stormwater that runs off of logging roads.   In December 2011, the Court had sought the federal government’s views on the case.  The government urged the Court not to grant review, arguing that Congress had passed new legislation, and that EPA was writing a new rule that would have ended the need for a permit under the Act.   Even so, the Court granted review last June, and the case then proceeded to briefing and oral argument.

The new briefing order called for supplemental written arguments, not to exceed 3000 words each, addressing the EPA’s rule issued four days before the oral argument.   The briefs are to be filed by January 22.   Justice Stephen G. Breyer, Jr., is recused from the case, the order noted.

Recommended Citation: Lyle Denniston, Stormwater case about to end?, SCOTUSblog (Jan. 8, 2013, 3:34 PM),