Last-minute EPA rule change frustrates chief justice

The Environmental Protection Agency on Friday promulgated a last-minute rule that it says makes it unnecessary for the Supreme Court to decide a logging pollution case it heard Monday.

But it did not win the agency or the government’s lawyers any accolades from the man who sits at the center of the court’s bench.

Chief Justice John G. Roberts Jr. wanted to know why lawyers had not signaled earlier to the court that the agency was on the verge of enacting new rules, and perhaps saved the justices from plowing through “875 pages on the merits” of the case.

“Maybe in the future you could let us know when something” is in the works, Roberts said.

The arguments came as the court again was silent on its decision about how and whether to review a spate of cases relating to same-sex marriage. The justices will consider the cases again on Friday at their private conference.


A last-minute change to an EPA rule has frustrated Chief Justice John Roberts. (Pablo Martinez Monsivais/AP)

Roberts’s complaint was the second time in a week that he has had sharp words for the office of Solicitor General Donald B. Verrilli Jr., who is charged with representing the federal government in Supreme Court cases.

Last week, Roberts told a lawyer that it was a “little disingenuous” for the government to attribute a change in its position to “further reflection” of the labor secretary. The truth, Roberts said, was that the former policy was one advanced by a Republican secretary of labor, and the new one was held a Democratic successor.

“We are seeing a lot of that lately,” Roberts said last week, referring the government’s wording in its brief. “It’s perfectly fine if you want to change your position, but don’t tell us it’s because the secretary has reviewed the matter further, the secretary is now of the [different] view. Tell us it’s because there is a new secretary.”

In Monday’s case, the EPA has always been on the side of the logging industry in the Northwest. They both contend that storm water running through ditches and culverts in forest logging roads is not the kind of pollution — like industrial wastes — that requires a certain kind of permit under the Clean Water Act.

The U.S. Court of Appeals for the 9th Circuit disagreed.

Deputy Solicitor General Malcolm L. Stewart told Roberts that the new EPA rule “specifically disapproves the Ninth Circuit’s decision in this case,” and thus should make the case moot.

Stewart apologized for the last-minute notice, but said, “I think we intended respect for the court’s processes rather than disrespect.” It would have been worse, he said, for the rule to come out after oral arguments.

“Well, maybe,” Roberts countered. “And it would have been best if we had known about this in early November.”

Stewart did not remind the justices that the government had told the court last spring not to accept the case because the agency intended to deal with it through its rule-making authority.

The justices did not indicate how they would proceed. Timothy Bishop, an attorney representing the logging interests, said the court should vacate the appeals court decision.

Jeffrey Fisher, a Stanford University law professor representing environmentalists, said the court should simply dismiss the case as “improvidently granted,” the court’s term for a case it later realizes it should not have accepted.

Fisher also said environmentalists would likely challenge the EPA’s new rule as an improper interpretation of the Clean Water Act.

Two cases were combined in Monday’s arguments: Decker v. Northwest Environmental Defense Center and Georgia-Pacific West v. Northwest Environmental Defense Center.

Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006.
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