Decker v. Northwest Environmental Defense Center (11-338)

argument 11-338

Decker v. Northwest Environmental Defense Center

Supreme Court of the United States 49 min 3 speakers 8 chapters transcribed 5 days ago official recording ↗

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What is the Supreme Court hearing in Decker v. Northwest Environmental Defense Center?

John G. Roberts 0:01

We'll hear argument next in Case 11338, Decker v. Northwest Environmental Defense Center and Georgia Pacific v. the Northwest Environmental Defense Center. Mr. Bishop.

Unknown 0:13

Thank you, Mr. Speaker. Chief Justice, and may it please the Court. There is a straightforward ground for reversal here that rests on a standard application of deference principles to EPA's treatment of stormwater.

John G. Roberts 0:25

Before we get into that, congratulations to your clients on getting almost all the relief they're looking for under the new rule issued on Friday. And thank you for calling it to our attention.

Unknown 0:36

Thank you. The problem with that rule is that it puts into place something that EPA has been telling the courts throughout this litigation that in the Stormwater Rule, where EPA refers to standard industrial classification 2411, that what it is referring to is solely the four identified point sources in the silver culture rule, rock crushing and so on. In this case, any D.C. respondent argues that the statute, the language of the statute, which is that discharges that are associated with industrial activity must have NPDES permits, prevents EPA from doing that. But there was no ruling in the Court of Appeals. The Court of Appeals did not rule on the statute, whether the statute mandates that these logging roads be

Unknown 1:35

covered. No, it did not. That is an argument that respondents have made in And so that's not a point that this Court could resolve in the first instance. Well, I don't think that's right. The respondent can defend its judgment on grounds other than those that were the basis of the Ninth Circuit decision. Yes, you can do that, but this Court is a Court of review, not first view, and we don't take questions that haven't been aired below. Well, there's an additional reason why we don't think that the rule here moots the issue. Let's assume that there's a petition for review. I think that's a fairly safe assumption, that some environmental groups argue that the new rule is impermissible because it's at odds with the language of the statute, an argument that I think is near frivolous but that I think predictably will be made.

Unknown 2:38

The rule is prospective. What we have is a judgment from the Ninth Circuit that says that we were in violation for decades by not having permits.

John G. Roberts 2:51

Well, but it's an unusual situation for us to rule in a case where the issue has ongoing significance. And that's taken away. And what we would be doing is when there is a new rule, we would be considering quite a lot of difficult issues to determine what the old rule was so that you can unravel what the Ninth Circuit has upheld.

Unknown 3:12

Well, let me argue — I thought the case law was

Elena Kagan 3:18

fairly clear that when the EPA changes its rules in your favor, that — They can't — the Court can't impose penalties for a past violation.

Unknown 3:32

Well, I wish it were so, Claire. Certainly we think that that is the case. What they have asked for below is penalties, attorney's fees, and remediation of environmental harm. Now, we think that under laid law, they shouldn't be able to get any of those three things. Now, this only happened on Friday, so I can't claim that I've done complete research on the point, but it — You know, I do think that there doesn't appear to be any law on the application of laid law to a claim for remediation.

John G. Roberts 4:03

Is this a new rule that they — I, too, haven't had much of a chance to look at it, but is this a new rule or is it an amendment of the existing rule?

Unknown 4:13

It's an amendment of the existing rule, but what it does is to put into place into the rule exactly what EPA has been saying throughout this litigation. There is nothing new in the rule. So this is something that EPA has been saying in the litigation and that we think is entitled to our deference as a result of that. Now it's in the rule, so it gets Chevron deference.

John G. Roberts 4:34

Are you sure you

Unknown 4:34

want

John G. Roberts 4:34

what you're asking for? What if we go ahead and decide this case and rule against you?

Unknown 4:38

Well, we're hoping that you'll rule with us. And certainly on the basis of this rule, on the basis of this rule, you have to understand that the challenge to this rule is the claim that the words associated with industrial activity