Ouch! For the second time in one week, Chief Justice John Roberts Jr. chastised the Office of Solicitor General for not being more forthcoming, this time in a case involving the logging industry and water pollution.
In Decker v. Northwest Environmental Defense Center (consolidated with Georgia-Pacific West v. Northwest Environmental Defense Center), the logging industry, a large number of states, and the Obama administration challenged a ruling by the U.S. Court of Appeals for the Ninth Circuit. The appellate court had rejected the Environmental Protection Agency's position that the Clean Water Act does not require permits for stormwater runoff from ditches and culverts on roads used by the industry to harvest lumber.
Last Friday, the Environmental Protection Agency finalized a new rule that potentially could moot, or result in the court dismissing as improvidently granted, its review of the logging industry's appeal.
A clue that Roberts was peeved about something came immediately during arguments in the case on Monday when he congratulated Mayer Brown's Timothy Bishop, representing Georgia-Pacific and the Oregon state forester, for getting "almost all the relief" his client had sought under the EPA's new rule. He pointedly added, "And thank you for calling it to our attention."
However, the chief justice held his fire until Deputy Solicitor General Malcolm Stewart stood up to support Bishop's argument that the Ninth Circuit's decision was wrong.
Roberts asked Stewart if he were "as surprised as we were to learn about that final rule?"
Stewart said his office was not surprised. Roberts then proceeded to grill Stewart on when he had learned that the final rule was issued on Friday.
"I learned on Friday morning that the final rule would be issued," said Stewart. "I learned on Friday afternoon that the final rule had been issued. Within five minutes of that time, I alerted counsel for both the Petitioners and…."
Roberts interrupted: "You had no idea before Friday that this was coming out?"
Stewart replied that he knew it was a "strong possibility" because the EPA issued a notice in September of proposed rulemaking. The Office of Management and Budget, he added, had a notation its website in early November to the effect that the rule had been transmitted for final approval by OMB.