New EPA rule could upend high court runoff case

  • Posted: Monday, December 3, 2012 11:04 p.m.

WASHINGTON, D.C. — Wearing his gray morning coat and striped trousers, Justice Department lawyer Malcolm Stewart was the very picture of Supreme Court propriety Monday as he sought to placate the frustrated Chief Justice John Roberts. The bounds of lawyerly good sense, however, meant Stewart could not utter these four apt words: “I told you so.”

The issue was a new rule from the Environmental Protection Agency dealing with runoff from logging roads. As it happened, the regulation was issued on Friday, less than 72 hours before a Supreme Court argument dealing with the same topic. The regulation probably will keep the court from issuing a meaningful ruling in the dispute between timber interests and environmentalists.

“Were you as surprised as we were?” Roberts asked.

Stewart said he learned on Friday morning that the new regulation would be issued that day. But back in May, after the court asked the department to weigh in, Stewart was an author of a legal filing that urged the court not take the case, in large part because EPA was working on the very regulation it just finished.

The justices went ahead last spring and set the case for argument on Monday anyway.

The new regulation makes clear that the muddy water coming off a logging road should be considered the same as water running off a farm field – not like the water that flows out a pipe from a factory and requires a special permit.

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