Decker v. Northwest Environmental Defense Center
Consolidated with:
| Docket No. | Op. Below | Argument | Opinion | Vote | Author | Term |
|---|---|---|---|---|---|---|
| 11-338 | 9th Cir. | Dec 3, 2012 | Mar 20, 2013 | 7-1 | Kennedy | OT 2012 |
Holding: A provision of the Clean Water Act governing challenges to Environmental Protection Agency actions, 33 U.S.C. § 1369(b), is not a jurisdictional bar to this suit, which alleges that the defendants had not obtained National Pollutant Discharge Elimination System permits before discharging stormwater runoff into two Oregon rivers. That provision is the exclusive vehicle for suits seeking to invalidate certain agency decisions, such as the establishment of effluent standards and the issuance of permits. It does not bar a district court from entertaining a citizen suit, like this one, under Section 1365 when the suit is against an alleged violator and seeks to enforce an obligation imposed by the Act or its regulations. Moreover, the EPA"s recent amendment to the Industrial Stormwater Rule does not make the cases moot.
Judgment: Reversed, 7-1, in an opinion by Justice Kennedy on March 20, 2013. The Chief Justice filed a concurring opinion, which was joined by Justice Alito. Justice Scalia filed an opinion dissenting in part and concurring in part.
SCOTUSblog Coverage
- Opinion analysis: Too soon to say au revoir to Auer? (John Elwood, March 22, 2013)
- Much advice, little agreement, on EPA case (Lyle Denniston, January 24, 2013)
- Stormwater case about to end? (Lyle Denniston, January 8, 2013)
- Argument recap: With amici like these . . . (John Elwood, December 4, 2012)
- Argument preview: Does channeling rainwater through a ditch require a Clean Water Act permit? (John Elwood, November 27, 2012)
| Date | Proceedings and Orders |
|---|---|
| 07/29/2011 | Application (11A146) to extend the time to file a petition for a writ of certiorari from August 15, 2011 to September 14, 2011, submitted to Justice Kennedy. |
| 08/03/2011 | Application (11A146) granted by Justice Kennedy extending the time to file until September 14, 2011. |
| 09/13/2011 | Petition for a writ of certiorari filed. (Response due October 17, 2011) |
| 09/21/2011 | Consent to the fiing of amicus curiae briefs, in suport of either party or of neither party, received from counsel for the petitioners. |
| 09/23/2011 | Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for the respondent. VIDED. |
| 09/30/2011 | Order extending time to file response to petition to and including November 18, 2011. |
| 10/12/2011 | Brief amici curiae of National Association of Counties, et al. filed. VIDED. |
| 10/14/2011 | Brief amici curiae of Alabama Forestry Association, et al. filed. VIDED. |
| 10/14/2011 | Brief amici curiae of Arkansas, et al. filed. VIDED. |
| 10/17/2011 | Brief amici curiae of National Alliance of Forest Owners, et al. filed. VIDED. |
| 10/17/2011 | Brief amici curiae of American Forest Resource Council, et al. filed. VIDED. |
| 10/17/2011 | Brief amici curiae of Mountain States Legal Foundation |
| 11/10/2011 | Brief of respondent Northwest Environmental Defense Center in opposition filed. VIDED. |
| 11/22/2011 | DISTRIBUTED for Conference of December 9, 2011. |
| 11/22/2011 | Reply of petitioners Marvin Brown, in His Official Capacity as Oregon State Forester, et al. filed. (Distributed) |
| 12/12/2011 | The Solicitor General is invited to file a brief in this case expressing the views of the United States. Justice Breyer took no part in the consideration or decision of this petition. |
| 05/24/2012 | Brief amicus curiae of United States filed. VIDED. |
| 06/04/2012 | Supplemental brief of respondent Northwest Environmental Defense Center filed. VIDED. |
| 06/04/2012 | Supplemental brief of petitioners Marvin Brown, in His Official Capacity as Oregon State Forester, et al. filed. |
| 06/05/2012 | DISTRIBUTED for Conference of June 21, 2012. |
| 06/25/2012 | Petition GRANTED The petition for a writ of certiorari in No. 11-347 is granted. The cases are consolidated and a total of one hour is allotted for oral argument. Justice Breyer took no part in the consideration or decision of this petition. |
| 07/12/2012 | The time to file the joint appendix and petitioners' briefs on the merits is extended to and including August 21, 2012. VIDED. |
| 07/12/2012 | The time to file respondents' brief on the merits is extended to and including October 2, 2012. VIDED. |
| 07/18/2012 | Consent to the filing of amicus curiae briefs in support of either party or neither party received from counsel for the respondents. VIDED |
| 07/23/2012 | Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for the petitioners. |
| 07/25/2012 | The time to file the joint appendix and petitioners' briefs on the merits is further extended to and including August 28, 2012. VIDED |
| 07/25/2012 | The time to file respondents' brief on the merits is further extended to and including October 16, 2012. VIDED |
| 08/22/2012 | Brief amici curiae of Association of Oregon Counties, et al. filed. VIDED. |
| 08/28/2012 | Brief of petitioners Doug Decker, in his official capacity as Oregon State Forester, et al. filed. |
| 08/28/2012 | Joint appendix filed. (Jt. Appendix in 2 volumes) VIDED. (Statement of costs received.) |
| 08/28/2012 | Brief amicus curiae of The Ruffed Grouse Society filed. VIDED. |
| 08/29/2012 | Brief amici curiae of American Forest Resource Council, et al. filed. VIDED. |
| 08/30/2012 | Brief amici curiae of National Governors Association, et al. filed. VIDED. |
| 08/31/2012 | Brief amici curiae of National Association of Home Builders, et al. filed. |
| 09/04/2012 | Brief amicus curiae of United States filed. VIDED. |
| 09/04/2012 | Brief amici curiae of Law Professors filed. VIDED. |
| 09/04/2012 | Brief amicus curiae of Chamber of Commerce of the United States of America filed. VIDED. |
| 09/04/2012 | Brief amici curiae of Arkansas, et al. filed. VIDED. |
| 09/04/2012 | Brief amici curiae of National Alliance of Forest Owners, et al. filed. VIDED. |
| 09/04/2012 | Brief amicus curiae of Mountain States Legal Foundation filed. VIDED. (Distributed) |
| 09/04/2012 | Brief amici curiae of Society of American Foresters, et al. filed. VIDED. |
| 09/04/2012 | Brief amici curiae of Pacific Legal Foundation, et al. filed. VIDED. |
| 09/14/2012 | SET FOR ARGUMENT ON Monday, December 3, 2012. |
| 09/28/2012 | Record received from U.S.C.A. for 9th Circuit. (1 envelope). |
| 09/28/2012 | Record from U.S.D.C. for District of Oregon is electronic. |
| 10/16/2012 | Brief of respondent Northwest Environmental Defense Center, et al. filed. VIDED. (Distributed) |
| 10/17/2012 | CIRCULATED. |
| 10/17/2012 | Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed. VIDED. |
| 10/23/2012 | Brief amici curiae of Law Professors on Section 1369(b) Jurisdiction filed. VIDED. (Distributed) |
| 10/23/2012 | Brief amici curiae of Western Division of the American Fisheries Society, et al. filed. VIDED. (Distributed) |
| 10/23/2012 | Brief amici curiae of Robert Wayland, et al. filed. VIDED. (Distributed) |
| 10/23/2012 | Brief amicus curiae of Dr. Kevin Boston filed. VIDED. (Distributed) |
| 10/23/2012 | Brief amici curiae of Pacific Coast Federation of Fishermen's Associations, et al. filed. VIDED. (Distributed) |
| 10/23/2012 | Brief amici curiae of Environmental Protection Information Center, et al. filed. VIDED. (Distributed) |
| 10/23/2012 | Brief amici curiae of Law Professors on the Propriety of Administrative Deference filed. VIDED. (Distributed) |
| 10/23/2012 | Brief amici curiae of Northwest Environmental Advocates, et al. filed. VIDED. (Distributed) |
| 10/30/2012 | Letter dated October 30, 2012, with attached Eleventh Circuit Decision, received from counsel for respondent Northwest Environmental Defense Center. Filed. VIDED. (Distributed) |
| 11/13/2012 | Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED. Justice Breyer took no part in the consideration or decision of this motion. |
| 11/14/2012 | Reply of petitioners Doug Decker, in his official capacity as Oregon State Forester, et al. filed. (Distributed) |
| 11/30/2012 | Letter from counsel for petitioners Georgia-Pacific West, Inc., et al., received and distributed. VIDED |
| 12/03/2012 | Argued. For petitoners: Timothy S. Bishop, Chicago, Ill.; and Malcolm L. Stewart, Deputy Solicitor General, Department of Justice, Washington, D. C. (for United States, as amicus curiae.) For respondent: Jeffrey L. Fisher, Stanford, Cal. |
| 12/20/2012 | Motion to file a supplemental brief after argument filed by petitioners Doug Decker, in his official capacity as Oregon State Forester, et al. (Distributed) |
| 01/08/2013 | Motion to file a supplemental brief after argument filed by petitioners GRANTED. The motion of petitioners in No. 11-338 for leave to file a supplemental brief after argument is granted. The other parties to these cases and the Solicitor General may file supplemental briefs, not to exceed 3,000 words each, addressing the effect of the Environmental Protection Agency |
| 01/22/2013 | Supplemental brief of respondent Northwest Environmental Defense Center filed. VIDED. (Distributed) |
| 01/22/2013 | Supplemental brief of the United States filed. VIDED. (Distributed) |
| 03/20/2013 | Judgment REVERSED and case REMANDED. Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Ginsburg, Alito, Sotomayor, and Kagan, JJ., joined, and in which Scalia, J., joined as to Parts I and II. Roberts, C. J., filed a concurring opinion, in which Alito, J., joined. Scalia, J., filed an opinion concurring in part and dissenting in part. Breyer, J., took no part in the consideration or decision of the cases. |
| 04/22/2013 | JUDGMENT ISSUED. |
Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as counsel to the respondent in this case.
Holding: A provision of the Clean Water Act governing challenges to Environmental Protection Agency actions, 33 U.S.C. § 1369(b), is not a jurisdictional bar to this suit, which alleges that the defendants had not obtained National Pollutant Discharge Elimination System permits before discharging stormwater runoff into two Oregon rivers. That provision is the exclusive vehicle for suits seeking to invalidate certain agency decisions, such as the establishment of effluent standards and the issuance of permits. It does not bar a district court from entertaining a citizen suit, like this one, under Section 1365 when the suit is against an alleged violator and seeks to enforce an obligation imposed by the Act or its regulations. Moreover, the EPA”s recent amendment to the Industrial Stormwater Rule does not make the cases moot.
Judgment:”Reversed, 7-1, in an opinion by Justice Kennedy on March 20, 2013. The Chief Justice filed a concurring opinion, which was joined by Justice Alito. Justice Scalia filed an opinion dissenting in part and concurring in part.