DECKER v. NORTHWEST ENVIRONMENTAL DEFENSE CENTER

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

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Nos. 11–338 and 11–347

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DOUG DECKER, in his official capacity as OREGON STATE FORESTER, et al., PETITIONERS

11–338 v.

NORTHWEST ENVIRONMENTAL DEFENSE CENTER

GEORGIA-PACIFIC WEST, INC., et al., PETITIONERS

11–347 v.

NORTHWEST ENVIRONMENTAL DEFENSE CENTER

on writs of certiorari to the united states court of appeals for the ninth circuit

[March 20, 2013]

Justice Kennedy delivered the opinion of the Court.

These cases present the question whether the Clean Water Act (Act) and its implementing regulations require permits before channeled stormwater runoff from logging roads can be discharged into the navigable waters of the United States. Under the statute and its implementing regulations, a permit is required if the discharges are deemed to be “associated with industrial activity.” 33 U. S. C. §1342(p)(2)(B). The Environmental Protection Agency (EPA), with the responsibility to enforce the Act, has issued a regulation defining the term “associated with industrial activity” to cover only discharges “from any conveyance that is used for collecting and conveying storm water and that is directly related to manufacturing, processing or raw materials storage areas at an industrial plant.” 40 CFR 122.26(b)(14) (2006). The EPA interprets its regulation to exclude the type of stormwater discharges from logging roads at issue here. See Brief for United States as Amicus Curiae 24–27. For reasons now to be explained, the Court concludes the EPA’s determination is a reasonable interpretation of its own regulation; and, in consequence, deference is accorded to the interpretation under Auer v. Robbins, 519 U. S. 452, 461 (1997) .

I A

Congress passed the Clean Water Act in 1972 to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 86Stat. 816, 33 U. S. C. §1251(a). A central provision of the Act is its requirement that individuals, corporations, and governments secure National Pollutant Discharge Elimination System (NPDES) permits before discharging pollution from any point source into the navigable waters of the United States. See §§1311(a), 1362(12); EPA v. California ex rel. State Water Resources Control Bd., 426 U. S. 200, 205 (1976) . The Act defines “point source” as

“any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture.” §1362(14).

When the Act took effect, the EPA found it difficult to process permit applications from countless owners and operators of point sources throughout the country. The agency issued regulations exempting certain types of point-source discharges from the NPDES permitting scheme, but in 1977 those directives were found invalid. The Court of Appeals for the District of Columbia Circuit ruled that the statute did not give the EPA “authority to exempt categories of point sources from the permit requirements” of the Act. Natural Resources Defense Council, Inc. v. Costle, 568 F. 2d 1369, 1377. In response the EPA issued new regulations to define with more precision which categories of discharges qualified as point sources in the first place. Among these regulations was the so-called Silvicultural Rule. This rule is at issue here. It provides:

“Silvicultural point source means any discernible, confined and discrete conveyance related to rock crushing, gravel washing, log sorting, or log storage facilities which are operated in connection with silvicultural activities and from which pollutants are discharged into waters of the United States. The term does not include non-point source silvicultural activities such as nursery operations, site preparation, reforestation and subsequent cultural treatment, thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage, or road construction and maintenance from which there is natural runoff.” 40 CFR §122.27(b)(1).

Under the quoted rule, any discharge from a logging-related source that qualifies as a point source requires an NPDES permit unless some other federal statutory provision exempts it from that coverage. In one such provision, 33 U. S. C. §1342(p), Congress has exempted certain discharges of stormwater runoff. The statutory exemptions were considered necessary because, from the outset, the EPA had encountered recurring difficulties in determining how best to manage discharges of this kind. See, e.g., Natural Resources Defense Council, Inc. v. EPA, 966 F. 2d 1292, 1295–1296 (CA9 1992). In 1987, Congress responded to these problems and adopted various stormwater-related amendments to the Act. §405, 101Stat. 69, 33 U. S. C. §1342(p).

The 1987 amendments exempt from the NPDES permitting scheme most “discharges composed entirely of stormwater.” §1342(p)(1). The general exemption, however, does not extend to all stormwater discharges. As relevant here, Congress directed the EPA to continue to require permits for stormwater discharges “associated with industrial activity.” §1342(p)(2)(B). The statute does not define that term, but the EPA adopted a regulation (hereinafter Industrial Stormwater Rule) in which it defined it as

“the discharge from any conveyance that is used for collecting and conveying storm water and that is directly related to manufacturing, processing or raw materials storage areas at an industrial plant. The term does not include discharges from facilities or activities excluded from the NPDES program under this part 122. For the categories of industries identified in this section, the term includes, but is not limited to, storm water discharges from . . . immediate access roads and rail lines used or traveled by carriers of raw materials, manufactured products, waste material, or by-products used or created by the facility . . . .” 40 CFR §122.26(b)(14) (2006).

The Industrial Stormwater Rule also specified that, with one exception not relevant here, “[f]acilities classified as Standard Industrial Classificatio[n] 24” are “considered to be engaging in ‘industrial activity’ for purposes of paragraph (b)(14).” Ibid. The Standard Industrial Classifications are a system used by federal agencies to categorize firms engaged in different types of business activity. See Dept. of Labor, Standard Industrial Classifications Manual, online at http://www.osha.gov/pls/imis/sic_manual.html (as visited Mar. 14, 2013, and available in Clerk of Court’s case file). Standard Industrial Classification 24 identifies industries involved in the field of “Lumber and Wood Products.” 2 App. 64. This includes the “Logging” industry, defined as “[e]stablishments primarily engaged in cutting timber and in producing . . . primary forest or wood raw materials.” Ibid.

On November 30, 2012—three days before the instant cases were argued in this Court—the EPA issued its final version of an amendment to the Industrial Stormwater Rule. The amendment was the agency’s response to the Court of Appeals’ ruling now under review. The amended version seeks to clarify the types of facilities within Standard Industrial Classification 24 that are deemed to be engaged in industrial activity for purposes of the rule. The amended Industrial Stormwater Rule does not cover all facilities within Standard Industrial Classification 24. It limits covered stormwater discharges to

“[f]acilities classified within Standard Industrial Clas-sification 24, Industry Group 241 that are rock crushing, gravel washing, log sorting, or log storage facilities operated in connection with silvicultural activities . . . and Industry Groups 242 through 249.” 77 Fed. Reg. 72974, pt. 122, subpt. B (2012).

It should be noted, by way of explanation, that an Industry Group is a subcategory of businesses within a Standard Industrial Classification. Industry Group 241 is “Logging,” while Industry Groups 242 through 245 are, respectively, “Sawmills and Planing Mills,” “Millwork, Veneer, Plywood, and Structural Wood,” “Wood Containers,” and “Wood Buildings and Mobile Homes.” Industry Group 249 is “Miscellaneous Wood Products.” Industry Groups 246 through 248 are blank categories. Standard Industrial Classifications Manual, supra, Major Group 24.

It is fair to say the purpose of the amended regulation is to bring within the NPDES permit process only those logging operations that involve the four types of activity (rock crushing, gravel washing, log sorting, and log storage facilities) that are defined as point sources by the explicit terms of the Silvicultural Rule.

Up to this stage in the litigation, of course, the cases have been concerned with the Industrial Stormwater Rule before the amendment adopted on November 30, 2012. The amended regulation will determine whether from this point forward NPDES permits will be required for the stormwater discharges at issue. The parties disagree about the significance of the amended rule for purposes of these cases. Before reaching this and other preliminary points, however, it is appropriate to set forth the facts and history of the cases leading to the proceedings in this Court.

B

At issue are discharges of channeled stormwater runoff from two logging roads in Oregon’s Tillamook State Forest, lying in the Pacific Coast Range about 40 miles west of Portland. Petitioner Georgia-Pacific West, along with other logging and paper-products companies, has a contract with the State of Oregon to harvest timber from the forest. It uses the roads for that purpose. When it rains (which it does often in the mountains of northwest Oregon, averaging in some areas more than 100 inches per year), water runs off the graded roads into a system of ditches, culverts, and channels that discharge the water into nearby rivers and streams. The discharges often contain large amounts of sediment, in the form of dirt and crushed gravel from the roads. There is evidence that this runoff can harm fish and other aquatic organisms.

In September 2006, respondent Northwest Environmental Defense Center (NEDC) filed suit in the United States District Court for the District of Oregon. It invoked the Clean Water Act’s citizen-suit provision, 33 U. S. C. §1365, and named as defendants certain firms involved in log-ging and paper-products operations (including petitioner Georgia-Pacific West), as well as state and local governments and officials (including the State Forester of Oregon, who is now petitioner Doug Decker). The suit alleged that the defendants caused discharges of channeled stormwater runoff into two waterways—the South Fork Trask River and the Little South Fork Kilchis River. The defendants had not obtained NPDES permits, and so, the suit alleged, they had violated the Act.

The District Court dismissed the action for failure to state a claim. It concluded that NPDES permits were not required because the ditches, culverts, and channels were not point sources of pollution under the Act and the Silvicultural Rule. The Court of Appeals for the Ninth Circuit reversed. Northwest Environmental Defense Center v. Brown, 640 F. 3d 1063 (2011). It relied upon three principal propositions. First, it held that the District Court had subject-matter jurisdiction under §1365 notwithstanding a different provision of the Act, 33 U. S. C. §1369(b)(1), limiting judicial review of EPA regulations. Second, the Court of Appeals held that while the EPA’s Silvicultural Rule is ambiguous on the question whether the conveyances at issue are point sources, those conveyances must be deemed point sources under the rule in order to give effect to the Act’s expansive definition of the term. Third, the Court of Appeals held that because the Industrial Stormwater Rule makes cross-reference to Standard Industrial Classification 24, the discharges at issue are “associated with industrial activity” within the meaning of the regulation, despite the EPA’s conclusion to the contrary. The regulation was held to be unambiguous on this point. The Court of Appeals thus ruled that the discharges were from point sources and not exempt from the NPDES permitting scheme by the Industrial Stormwater Rule. It followed that petitioners had been in violation of the Act.

This Court granted certiorari. 567 U. S. ___ (2012).

II

Before proceeding to the merits, it is necessary to consider two jurisdictional questions.

A

Respondent NEDC invoked the jurisdiction of the District Court under 33 U. S. C. §1365(a), which “authorize[s] private enforcement of the provisions of [the Clean Water Act]” and its implementing regulations. Department of Energy v. Ohio, 503 U. S. 607, 613, n. 5 (1992) . Petitioners, however, maintain that this suit is barred by a separate provision of the Act, §1369(b). That statute provides for “judicial review in the United States courts of appeals of various particular actions by the [EPA] Administrator, including establishment of effluent standards and issuance of permits for discharge of pollutants.” Middlesex County Sewerage Authority v. National Sea Clammers Assn., 453 U. S. 1 –14 (1981). Where that review is available, it is the exclusive means of challenging actions covered by the statute, §1369(b)(2), and an application for review must be lodged in the court of appeals within 120 days of the Administrator’s action, §1369(b)(1).

The Court of Appeals was correct to rule that the exclusive jurisdiction mandate is not applicable in this suit. Section 1369(b) extends only to certain suits challenging some agency actions. It does not bar a district court from entertaining a citizen suit under §1365 when the suit is against an alleged violator and seeks to enforce an obligation imposed by the Act or its regulations.

The present action is within the scope of §1365. It is a claim to enforce what is at least a permissible reading of the Silvicultural Rule. The rule is ambiguous: Its characterization of silvicultural harvesting operations “from which there is natural runoff,” 40 CFR §122.27(b)(1), as a nonpoint source might be read, as petitioners contend, to apply to the channeled stormwater runoff at issue; or it might be read, as respondent NEDC urges, to apply only to runoff not collected in channels or other engineered improvements. See New Oxford American Dictionary 1167 (3d ed. 2010) (Oxford Dict.) (“natural” means “existing in or caused by nature; not made or caused by humankind”). NEDC’s reading would make the channeled discharges here point-source pollution under the Act. In its view only this interpretation can be squared with the Act’s broad definition of “point source.” 33 U. S. C. §1362(14). On this premise, the instant suit is an effort not to challenge the Silvicultural Rule but to enforce it under a proper interpretation. It is a basic tenet that “regulations, in order to be valid, must be consistent with the statute under which they are promulgated.” United States v. Larionoff, 431 U. S. 864, 873 (1977) .

For jurisdictional purposes, it is unnecessary to determine whether NEDC is correct in arguing that only its reading of the Silvicultural Rule is permitted under the Act. It suffices to note that NEDC urges the Court to adopt a “purposeful but permissible reading of the regulation . . . to bring it into harmony with . . . the statute.” Environmental Defense v. Duke Energy Corp., 549 U. S. 561, 573 (2007) . NEDC does not seek “an implicit declaration that the . . . regulations were invalid as written.” Ibid. And, as a result, §1369(b) is not a jurisdictional bar to this suit.

B

“It is a basic principle of Article III that a justiciable case or controversy must remain extant at all stages of review, not merely at the time the complaint is filed.” United States v. Juvenile Male, 564 U. S. ___, ___ (2011) (per curiam) (slip op., at 4) (internal quotation marks omitted). This principle requires us to determine whether the EPA’s recent amendment to the Industrial Stormwater Rule makes the cases moot. In a supplemental brief filed after oral argument, petitioner Decker, joined by the United States as amicus curiae, takes the position that the recent amendment makes these cases moot in relevant part. See Supp. Brief for Petitioners in No. 11–338, pp. 4–6; Supp. Brief for United States as Amicus Curiae 4–8.

That conclusion is incorrect. “A case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.” Knox v. Service Employees Int’l, 567 U. S. ___, ___ (2012) (slip op., at 7) (internal quotation marks omitted). Here, despite the recent amendment, a live controversy continues to exist regarding whether petitioners may be held liable for unlawful discharges under the earlier version of the Industrial Stormwater Rule.

Respondent NEDC continues to press its claim that petitioners’ discharges are unlawful under both the amended regulation and the earlier version. See Supp. Brief for Respondent 3–13. The instant cases provide no occasion to interpret the amended regulation. “ ‘[W]e are a court of review, not of first view.’ ” Arkansas Game and Fish Comm’n v. United States, ante, at 13 (quoting Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005) ). The parties, however, have litigated the suit extensively based on the earlier version of the Industrial Stormwater Rule; and that version governed petitioners’ past discharges, which might be the basis for the imposition of penalties even if, in the future, those types of discharges will not require a permit.

If the Court of Appeals is correct that petitioners were obligated to secure NPDES permits before discharging channeled stormwater runoff, the District Court might order some remedy for their past violations. The Act contemplates civil penalties of up to $25,000 per day, 33 U. S. C. §1319(d), as well as attorney’s fees for prevailing parties, §1365(d). NEDC, in addition, requests injunctive relief for both past and ongoing violations, in part in the form of an order that petitioners incur certain environmental-remediation costs to alleviate harms attributable to their past discharges. Under these circumstances, the cases remain live and justiciable, for the possibility of some remedy for a proven past violation is real and not remote. See Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U. S. 49 –65 (1987). The District Court, it is true, might rule that NEDC’s arguments lack merit, or that the relief it seeks is not warranted on the facts of these cases. That possibility, however, does not make the cases moot. “There may be jurisdiction and yet an absence of merits.” General Investment Co. v. New York Central R. Co., 271 U. S. 228, 230 (1926) .

III

The substantive question of the necessity for an NPDES permit under the earlier rule now must be addressed. Under the Act, petitioners were required to secure NPDES permits for the discharges of channeled stormwater runoff only if the discharges were “associated with industrial activity,” 33 U. S. C. §1342(p)(2)(B), as that statutory term is defined in the preamendment version of the Industrial Stormwater Rule, 40 CFR §122.26(b)(14) (2006). Otherwise, the discharges fall within the Act’s general exemption of “discharges composed entirely of stormwater” from the NPDES permitting scheme. 33 U. S. C. §1342(p)(1).

NEDC first contends that the statutory term “associated with industrial activity” unambiguously covers discharges of channeled stormwater runoff from logging roads. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 –843 (1984). That view, however, overlooks the multiple definitions of the terms “industrial” and “industry.” These words can refer to business activity in general, yet so too can they be limited to “economic activity concerned with the processing of raw materials and manufacture of goods in factories.” Oxford Dict. 887. The latter definition does not necessarily encompass outdoor timber harvesting. The statute does not foreclose more specific definition by the agency, since it provides no further detail as to its intended scope.

Somewhat more plausible is NEDC’s claim that the preamendment version of the Industrial Stormwater Rule unambiguously required a permit for the discharges at issue. NEDC reasons that under the rule, “[f]or the categories of industries identified in this section,” NPDES permits are required for, among other things, “storm water discharges from . . . immediate access roads . . . used or traveled by carriers of raw materials.” 40 CFR §122.26(b)(14) (2006). Yet this raises the question whether logging is a “categor[y] of industr[y]” identified by the section. The regulation goes on to identify a list of “categories of facilities” that “are considered to be engaging in ‘industrial activity’ for purposes” of the Industrial Stormwater Rule. Ibid. In the earlier version of the regulation, this list included “[f]acilities classified as Standard Industrial Classificatio[n] 24,” which encompasses “Logging.” Ibid. See also supra, at 4–5. Hence, NEDC asserts, logging is among the categories of industries for which “storm water discharges from . . . immediate access roads . . . used or traveled by carriers of raw materials” required NPDES permits under the earlier version of the Industrial Stormwater Rule. §122.26(b)(14). NEDC further notes, in support of its reading of the regulation, that modern logging is a large-scale, highly mechanized enterprise, using sophisticated harvesting machines weighing up to 20 tons. See Brief for Respondent 4–5.

The EPA takes a different view. It concludes that the earlier regulation invoked Standard Industrial Classification 24 “ ‘to regulate traditional industrial sources such as sawmills.’ ” Brief for United States as Amicus Curiae 24–25. It points to the regulation’s reference to “facilities” and the classification’s reference to “establishments,” which suggest industrial sites more fixed and permanent than outdoor timber-harvesting operations. Ibid. See also 55 Fed. Reg. 47990, 48008 (1990). This reading is reinforced by the Industrial Stormwater Rule’s definition of discharges associated with industrial activity as discharges “from any conveyance that is used for collecting and conveying storm water and that is directly related to manufacturing, processing or raw materials storage areas at an industrial plant.” 40 CFR §122.26(b)(14) (2006). This language lends support to the EPA’s claim that the regulation does not cover temporary, outdoor logging installations. It was reasonable for the agency to conclude that the conveyances at issue are “directly related” only to the harvesting of raw materials, rather than to “manufacturing,” “processing,” or “raw materials storage areas.” See Oxford Dict. 1066 (manufacturing is “mak[ing] (something) on a large scale using machinery”); id., at 1392 (processing is “perform[ing] a series of mechanical or chemical operations on (something) in order to change or preserve it”). In addition, even if logging as a general matter is a type of economic activity within the regulation’s scope, a reasonable interpretation of the regulation could still require the discharges to be related in a direct way to operations “at an industrial plant” in order to be subject to NPDES permitting.

NEDC resists this conclusion, noting that elsewhere in the Industrial Stormwater Rule the EPA has required NPDES permits for stormwater discharges associated with other types of outdoor economic activity. See §122.26(b)(14)(iii) (mining); §122.26(b)(14)(v) (landfills receiving industrial waste); §122.26(b)(14)(x) (large construction sites). The EPA reasonably could conclude, however, that these types of activities tend to be more fixed and permanent than timber-harvesting operations are and have a closer connection to traditional industrial sites. In light of the language of the regulation just discussed, moreover, the inclusion of these types of economic activity in the Industrial Stormwater Rule need not be read to mandate that all stormwater discharges related to these activities fall within the rule, just as the inclusion of logging need not be read to extend to all discharges from logging sites. The regulation’s reach may be limited by the requirement that the discharges be “directly related to manufacturing, processing or raw materials storage areas at an industrial plant.” §122.26(b)(14).

It is well established that an agency’s interpretation need not be the only possible reading of a regulation—or even the best one—to prevail. When an agency interprets its own regulation, the Court, as a general rule, defers to it “unless that interpretation is ‘plainly erroneous or inconsistent with the regulation.’ ” Chase Bank USA, N. A. v. McCoy, 562 U. S. ___, ___ (2011) (slip op., at 12) (quoting Auer, 519 U. S., at 461). The EPA’s interpretation is a permissible one. Taken together, the regulation’s references to “facilities,” “establishments,” “manufacturing,” “processing,” and an “industrial plant” leave open the rational interpretation that the regulation extends only to traditional industrial buildings such as factories and associated sites, as well as other relatively fixed facilities.

There is another reason to accord Auer deference to the EPA’s interpretation: there is no indication that its current view is a change from prior practice or a post hoc justification adopted in response to litigation. See Christopher v. SmithKline Beecham Corp., 567 U. S. ___, ___ (2012) (slip op., at 10). The opposite is the case. The agency has been consistent in its view that the types of discharges at issue here do not require NPDES permits.

The EPA’s decision exists against a background of state regulation with respect to stormwater runoff from logging roads. The State of Oregon has made an extensive effort to develop a comprehensive set of best practices to manage stormwater runoff from logging roads. These practices include rules mandating filtration of stormwater runoff before it enters rivers and streams, Ore. Admin. Rule 629–625–0330(4) (2012); requiring logging companies to construct roads using surfacing that minimizes the sediment in runoff, Rule 629–625–0700(2); and obligating firms to cease operations where such efforts fail to prevent visible increases in water turbidity, Rule 629–625–0700(3). Oregon has invested substantial time and money in establishing these practices. In addition, the development, siting, maintenance, and regulation of roads—and in particular of state forest roads—are areas in which Oregon has considerable expertise. In exercising the broad discretion the Clean Water Act gives the EPA in the realm of stormwater runoff, the agency could reasonably have concluded that further federal regulation in this area would be duplicative or counterproductive. Indeed, Congress has given express instructions to the EPA to work “in consultation with State and local officials” to alleviate stormwater pollution by developing the precise kind of best management practices Oregon has established here. 33 U. S. C. §1342(p)(6).

*  *  *

The preamendment version of the Industrial Stormwater Rule, as permissibly construed by the agency, exempts discharges of channeled stormwater runoff from logging roads from the NPDES permitting scheme. As a result, there is no need to reach petitioners’ alternative argument that the conveyances in question are not “pipe[s], ditch[es], channel[s], tunnel[s], conduit[s],” or any other type of point source within the Act’s definition of the term. §1362(14).

For the reasons stated, the judgment of the Court of Appeals is reversed, and the cases are remanded for proceedings consistent with this opinion.

It is so ordered.

Justice Breyer took no part in the consideration or decision of these cases.

SUPREME COURT OF THE UNITED STATES

_________________

Nos. 11–338 and 11–347

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DOUG DECKER, in his official capacity as OREGON STATE FORESTER, et al., PETITIONERS

11–338 v.

NORTHWEST ENVIRONMENTAL DEFENSE CENTER

GEORGIA-PACIFIC WEST, INC., et al., PETITIONERS

11–347 v.

NORTHWEST ENVIRONMENTAL DEFENSE CENTER

on writs of certiorari to the united states court of appeals for the ninth circuit

[March 20, 2013]

Justice Scalia, concurring in part and dissenting in part.

I join Parts I and II of the Court’s opinion; I agree that these cases are not moot and that the District Court had jurisdiction. I do not join Part III. The Court there gives effect to a reading of EPA’s regulations that is not the most natural one, simply because EPA says that it believes the unnatural reading is right. It does this, moreover, even though the agency has vividly illustrated that it can write a rule saying precisely what it means—by doing just that while these cases were being briefed.

Enough is enough.

I

For decades, and for no good reason, we have been giving agencies the authority to say what their rules mean, under the harmless-sounding banner of “defer[ring] to an agency’s interpretation of its own regulations.” Talk America, Inc. v. Michigan Bell Telephone Co., 564 U. S. ___, ___ (2011) (Scalia, J., concurring) (slip op., at 1). This is generally called Seminole Rock or Auer deference. See Bowles v. Seminole Rock & Sand Co., 325 U. S. 410 (1945) ; Auer v. Robbins, 519 U. S. 452 (1997) .

Two Terms ago, in my separate concurrence in Talk America, I expressed doubts about the validity of this practice. In that case, however, the agency’s interpretation of the rule was also the fairest one, and no party had asked us to reconsider Auer. Today, however, the Court’s deference to the agency makes the difference (note the Court’s defensive insistence that the agency’s interpretation need not be “the best one,” ante, at 14). And respondent has asked us, if necessary, to “ ‘reconsider Auer.’ ” I believe that it is time to do so. See Brief for Respondent 42, n. 12; see also Brief for Law Professors on the Propriety of Administrative Deference as Amici Curiae. This is especially true because the circumstances of these cases illustrate Auer’s flaws in a particularly vivid way.

The canonical formulation of Auer deference is that we will enforce an agency’s interpretation of its own rules unless that interpretation is “plainly erroneous or inconsistent with the regulation.” Seminole Rock, supra, at 414. But of course whenever the agency’s interpretation of the regulation is different from the fairest reading, it is in that sense “inconsistent” with the regulation. Obviously, that is not enough, or there would be nothing for Auer to do. In practice, Auer deference is Chevron deference applied to regulations rather than statutes. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984) . The agency’s interpretation will be accepted if, though not the fairest reading of the regulation, it is a plausible reading—within the scope of the ambiguity that the regulation contains.

Our cases have not put forward a persuasive justification for Auer deference. The first case to apply it, Seminole Rock, offered no justification whatever—just the ipse dixit that “the administrative interpretation . . . becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.” 325 U. S., at 414. Our later cases provide two principal explanations, neither of which has much to be said for it. See generally Stephenson & Pogoriler, Seminole Rock’s Domain, 79 Geo. Wash. L. Rev. 1449, 1454–1458 (2011). First, some cases say that the agency, as the drafter of the rule, will have some special insight into its intent when enacting it. E.g., Martin v. Occupational Safety and Health Review Comm’n, 499 U. S. 144 –153 (1991). The implied premise of this argument—that what we are looking for is the agency’s intent in adopting the rule—is false. There is true of regulations what is true of statutes. As Justice Holmes put it: “[w]e do not inquire what the legislature meant; we ask only what the statute means.” The Theory of Legal Interpretation, 12 Harv. L. Rev. 417, 419 (1899). Whether governing rules are made by the national legislature or an administrative agency, we are bound by what they say, not by the unexpressed intention of those who made them.

The other rationale our cases provide is that the agency possesses special expertise in administering its “ ‘complex and highly technical regulatory program.’ ” See, e.g., Thomas Jefferson Univ. v. Shalala, 512 U. S. 504, 512 (1994) . That is true enough, and it leads to the conclusion that agencies and not courts should make regulations. But it has nothing to do with who should interpret regulations—unless one believes that the purpose of interpretation is to make the regulatory program work in a fashion that the current leadership of the agency deems effective. Making regulatory programs effective is the purpose of rulemaking, in which the agency uses its “special expertise” to formulate the best rule. But the purpose of interpretation is to determine the fair meaning of the rule—to “say what the law is,” Marbury v. Madison, 1 Cranch 137, 177 (1803). Not to make policy, but to determine what policy has been made and promulgated by the agency, to which the public owes obedience. Indeed, since the leadership of agencies (and hence the policy preferences of agencies) changes with Presidential administrations, an agency head can only be sure that the application of his “special expertise” to the issue addressed by a regulation will be given effect if we adhere to predictable principles of textual interpretation rather than defer to the “special expertise” of his successors. If we take agency enactments as written, the Executive has a stable background against which to write its rules and achieve the policy ends it thinks best.

Another conceivable justification for Auer deference, though not one that is to be found in our cases, is this: If it is reasonable to defer to agencies regarding the meaning of statutes that Congress enacted, as we do per Chevron, it is a fortiori reasonable to defer to them regarding the meaning of regulations that they themselves crafted. To give an agency less control over the meaning of its own regulations than it has over the meaning of a congressionally enacted statute seems quite odd.

But it is not odd at all. The theory of Chevron (take it or leave it) is that when Congress gives an agency authority to administer a statute, including authority to issue interpretive regulations, it implicitly accords the agency a degree of discretion, which the courts must respect, regarding the meaning of the statute. See Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735 –741 (1996). While the implication of an agency power to clarify the statute is reasonable enough, there is surely no congressional implication that the agency can resolve ambiguities in its own regulations. For that would violate a fundamental principle of separation of powers—that the power to write a law and the power to interpret it cannot rest in the same hands. “When the legislative and executive powers are united in the same person . . . there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.” Montesquieu, Spirit of the Laws bk. XI, ch. 6, pp. 151–152 (O. Piest ed., T. Nugent transl. 1949). Congress cannot enlarge its own power through Chevron—whatever it leaves vague in the statute will be worked out by someone else. Chevron represents a presumption about who, as between the Executive and the Judiciary, that someone else will be. (The Executive, by the way—the competing political branch—is the less congenial repository of the power as far as Congress is concerned.) So Congress’s incentive is to speak as clearly as possible on the matters it regards as important.

But when an agency interprets its own rules—that is something else. Then the power to prescribe is augmented by the power to interpret; and the incentive is to speak vaguely and broadly, so as to retain a “flexibility” that will enable “clarification” with retroactive effect. “It is perfectly understandable” for an agency to “issue vague regulations” if doing so will “maximiz[e] agency power.” Thomas Jefferson Univ., supra, at 525 (Thomas, J., dissenting). Combining the power to prescribe with the power to interpret is not a new evil: Blackstone condemned the practice of resolving doubts about “the construction of the Roman laws” by “stat[ing] the case to the emperor in writing, and tak[ing] his opinion upon it.” 1 W. Blackstone, Commentaries on the Laws of England 58 (1765). And our Constitution did not mirror the British practice of using the House of Lords as a court of last resort, due in part to the fear that he who has “agency in passing bad laws” might operate in the “same spirit” in their interpretation. The Federalist No. 81, pp. 543–544 (J. Cooke ed. 1961). Auer deference encourages agencies to be “vague in framing regulations, with the plan of issuing ‘interpretations’ to create the intended new law without observance of notice and comment procedures.” Anthony, The Supreme Court and the APA: Sometimes They Just Don’t Get It, 10 Admin. L. J. Am. U. 1, 11–12 (1996). Auer is not a logical corollary to Chevron but a dangerous permission slip for the arrogation of power. See Talk America, 564 U. S., at ___ (Scalia, J., concurring) (slip op., at 2–3); Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 Colum. L. Rev. 612 (1996).

It is true enough that Auer deference has the same beneficial pragmatic effect as Chevron deference: The country need not endure the uncertainty produced by divergent views of numerous district courts and courts of appeals as to what is the fairest reading of the regulation, until a definitive answer is finally provided, years later, by this Court. The agency’s view can be relied upon, unless it is, so to speak, beyond the pale. But the duration of the uncertainty produced by a vague regulation need not be as long as the uncertainty produced by a vague statute. For as soon as an interpretation uncongenial to the agency is pronounced by a district court, the agency can begin the process of amending the regulation to make its meaning entirely clear. The circumstances of this case demonstrate the point. While these cases were being briefed before us, EPA issued a rule designed to respond to the Court of Appeals judgment we are reviewing. See 77 Fed. Reg. 72974 (2012) (to be codified in 40 CFR pt. 122, sub pt. B). It did so (by the standards of such things) relatively quickly: The decision below was handed down in May 2011, and in December 2012 the EPA published an amended rule setting forth in unmistakable terms the position it argues here. And there is another respect in which a lack of Chevron-type deference has less severe pragmatic consequences for rules than for statutes. In many cases, when an agency believes that its rule permits conduct that the text arguably forbids, it can simply exercise its discretion not to prosecute. That is not possible, of course, when, as here, a party harmed by the violation has standing to compel enforcement.

In any case, however great may be the efficiency gains derived from Auer deference, beneficial effect cannot justify a rule that not only has no principled basis but contravenes one of the great rules of separation of powers: He who writes a law must not adjudge its violation.

II

I would therefore resolve these cases by using the familiar tools of textual interpretation to decide: Is what the petitioners did here proscribed by the fairest reading of the regulations? What they did was to channel stormwater runoff from logging roads without a permit. To decide whether that was permissible we must answer one, and possibly two, questions: First, was the stormwater discharged from a “point source”? If not, no permit was required. But if so, we face the second question: Were the stormwater discharges exempt from the permit requirement because they were not “associated with industrial activity”? The fairest reading of the statute and regulations is that these discharges were from point sources, and were associated with industrial activity.

A

The Clean Water Act generally prohibits discharging pollution without a permit from what it calls a “point source.” 33 U. S. C. §1311(a). A “point source” is defined as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit,” and several other things. §1362(14). The stormwater here was discharged from logging roads through a series of pipes, ditches, and channels—all items expressly named in the definition.

EPA argues that the Silvicultural Rule, 40 CFR §122.27(b)(1) (2006), excludes from the definition of “[s]ilvicultural point source” “harvesting operations . . . from which there is natural runoff.” This is relevant, says the agency, because that rule specifies that only “[s]ilvicultural point sources, as defined in this section,” are “point sources subject to the . . . permit program.” §122.27(a). In EPA’s view, the stormwater here is “natural runoff.”

But are stormwater discharges “natural runoff” when they are channeled through manmade pipes and ditches, and carry with them manmade pollutants from manmade forest roads? It is not obvious that this is so—as the agency agrees. See Brief for United States as Amicus Curiae 19 (the rule’s “reference to ‘natural runoff’ associated with logging roads neither clearly encompasses nor clearly excludes the sort of channeled runoff that is at issue in this case”). In my view, giving the term the agency’s interpretation would contradict the statute’s definition of “point source,” which explicitly includes any “pipe, ditch, channel, tunnel, [and] conduit.” Applying the interpretive presumption of validity—the canon that we are to “prefe[r] the meaning that preserves to the meaning that destroys,” Panama Refining Co. v. Ryan, 293 U. S. 388, 439 (1935) (Cardozo, J., dissenting)—I would hold that the regulation’s exclusion of “natural runoff” does not reach the situation here. The stormwater discharges came from point sources, because they flowed out of artificial “pipe[s],” “ditch[es],” and “channel[s],” 33 U. S. C. §1362(14), and were thus not “natural runoff” from a logging operation, 40 CFR §122.27(b)(1) (emphasis added).

B

Many point-source stormwater discharges are nonetheless exempt from the usual permitting requirement. See 33 U. S. C. §1342(p). This exemption, however, does not reach discharges “associated with industrial activity.” Ibid. EPA has enacted a rule defining what it means for stormwater discharges to be “associated with” industrial activity, and what activities count as “industrial.” 40 CFR §122.26(b)(14).

The regulation sets out eleven “categories of industries”; as to those industries, discharges are “associated with industrial activity” if they come from sites used for “transportation” of “any raw material.” Ibid. The forest roads at issue here are used to transport raw material (logs); the only question is whether logging is a “categor[y] of industr[y]” enumerated in the definition. It is: The second of the listed “categories of facilities” is “[f]acilities classified as Standard Industrial Classifications 24 (except 2434).” §122.26(b)(14)(ii). Opening one’s hymnal to Standard Industrial Classification 24 (“Lumber and Wood Products, Except Furniture”), one finds that the first industry group listed, No. 2411, is “Logging”—defined as “[e]stablishments primarily engaged in cutting timber.” 2 App. 64. (As if that were not clear enough, an illustrative product of this industry is helpfully listed: “Logs.”) That, I would think, is that.

EPA disagrees, and the Court gives the agency’s position Auer deference, but that reading is certainly not the most natural one. The Court relies heavily on the fact that the definition of “[s]torm water discharge associated with industrial activity” requires that the discharge be “directly related to manufacturing, processing or raw materials storage areas at an industrial plant,” §122.26(b)(14). The crucial question this definition presents is whether the concluding phrase “at an industrial plant” limits only the last noun phrase (“raw materials storage areas”) or also the two preceding nouns (“manufacturing” and “processing”). The canon of interpretation known as the rule of the last antecedent states that “a limiting clause or phrase . . . should ordinarily be read as modifying only the noun or phrase that it immediately follows.” Barnhart v. Thomas, 540 U. S. 20, 26 (2003) . If a statute provides that “it shall be unlawful to possess a grenade launcher, a fully-automatic weapon, or a shotgun with a barrel shorter than 12 inches,” that does not mean that a grenade launcher with a barrel longer than 12 inches is legal. Application of the canon would mean that “at an industrial plant” modifies only “raw materials storage areas,” and therefore that “manufacturing” and “processing” anywhere, including in the forest, would be “associated with industrial activity.” (Standard Industrial Classification 24 categorizes logging as a manufacturing business, and these discharges are therefore “directly related to manufacturing.”)

Like all canons of interpretation, the rule of the last antecedent can be overcome by textual indication of contrary meaning. But that does not exist here. To the contrary, the enumerated categories of industries to which the term “industrial activity” applies reinforce the proposition that “at an industrial plant” does not modify “manufacturing” or “processing.” The term includes (in addition to logging) “active or inactive mining operations,” §122.26(b)(14)(iii); “[l]andfills” and “open dumps,” §122.26(b)(14)(v); “automobile junkyards,” §122.26(b)(14)(vi); and “[c]onstruction activity including clearing, grading and excavation,” §122.26(b)(14)(x). Those industries and activities (while related to manufacturing and processing) virtually never take place at anything like what one might describe as a “plant.” The rule of the last antecedent is therefore confirmed as the correct guide to meaning here: “at an industrial plant” limits only “raw materials storage areas.”

EPA also insists, Brief for United States as Amicus Curiae 24, that the regulation reaches only “ ‘traditional’ ” sources of industrial stormwater, such as sawmills. But Standard Industrial Classification 24 has a specific subcategory (No. 242) that is “Sawmills and Planing Mills.” 2 App. 64. The rule is not so limited, reaching by its terms “Standard Industrial Classificatio[n] 24 (except 2434).” §122.26(b)(14)(ii). The explicit carving-out of No. 2434 is telling: Why EPA chose to exclude “establishments primarily engaged in manufacturing wood kitchen cabinet and wood bathroom vanities” from the definition of industrial stormwater, I do not know—but the picayune nature of the exclusion gives lie to the idea that the rule’s scope ought to be decided by a rough sense of its gestalt. If EPA had meant to reach only sawmills, it quite obviously knew how to do so.

Finally, the Court believes that Standard Industrial Classification 24’s reference to “establishments” “suggest[s] industrial sites more fixed and permanent than outdoor timber-harvesting operations.” Ante, at 13. Not so. The Standard Industrial Classification uses “establishments” throughout to refer to business entities in general; for example, Classification 2411 refers to “[e]stablishments primarily engaged in cutting timber,” which includes “producing wood chips in the field.” 2 App. 64. I cannot imagine what kind of “fixed and permanent” industrial site the Court and EPA imagine will be “producing wood chips in the field.” And the Court’s final point, ante, at 13—that the regulatory definition of “industrial activity” uses the word “facilities”—cuts the other way: EPA regulations define “facility” to include “any . . . ‘point source.’ ” 40 CFR §122.2; see, e.g., §122.26(b)(14)(iii) (referring to mines as “facilities”).

The agency also assures us that its intent (Brief for United States as Amicus Curiae 25) was to reach a more limited subset of logging activities, an intent that it believes can essentially float free from the text of the relevant rule. In the end, this is the real meat of the matter: EPA states that it simply did not mean to require permits for the discharges at issue here. And the Court is willing to credit that intent, even given what I think has been amply demonstrated to be a contrary text.

*  *  *

Because the fairest reading of the agency’s rules proscribes the conduct at issue in these cases, I would affirm the judgment below. It is time for us to presume (to coin a phrase) that an agency says in a rule what it means, and means in a rule what it says there.

SUPREME COURT OF THE UNITED STATES

_________________

Nos. 11–338 and 11–347

_________________

DOUG DECKER, in his official capacity as OREGON STATE FORESTER, et al., PETITIONERS

11–338 v.

NORTHWEST ENVIRONMENTAL DEFENSE CENTER

GEORGIA-PACIFIC WEST, INC., et al., PETITIONERS

11–347 v.

NORTHWEST ENVIRONMENTAL DEFENSE CENTER

on writs of certiorari to the united states court of appeals for the ninth circuit

[March 20, 2013]

Chief Justice Roberts, with whom Justice Alito joins, concurring.

The opinion concurring in part and dissenting in part raises serious questions about the principle set forth in Bowles v. Seminole Rock & Sand Co., 325 U. S. 410 (1945) , and Auer v. Robbins, 519 U. S. 452 (1997) . It may be ap-propriate to reconsider that principle in an appropriate case. But this is not that case.

Respondent suggested reconsidering Auer, in one sentence in a footnote, with no argument. See Brief for Respondent 42, n. 12. Petitioners said don’t do it, again in a footnote. See Reply Brief for Petitioners in No. 11–338, p. 4, n. 1; see also Turner Broadcasting System, Inc. v. FCC, 520 U. S. 180 –224 (1997) (declining to decide question that received only “scant argumentation”). Out of 22 amicus briefs, only two—filed by dueling groups of law professors—addressed the issue on the merits. See Brief for Law Professors as Amici Curiae on the Propriety of Administrative Deference in Support of Respondent; Brief for Law Professors as Amici Curiae in Support of Petitioners; see also FTC v. Phoebe Putney Health System, Inc., 568 U. S. ___, ___, n. 4 (2013) (slip op., at 7, n. 4) (declining to consider argument raised only by amicus).

The issue is a basic one going to the heart of administrative law. Questions of Seminole Rock and Auer deference arise as a matter of course on a regular basis. The bar is now aware that there is some interest in reconsidering those cases, and has available to it a concise statement of the arguments on one side of the issue.

I would await a case in which the issue is properly raised and argued. The present cases should be decided as they have been briefed and argued, under existing precedent.

Print this transcript Transcript: 

ORAL ARGUMENT OF TIMOTHY S. BISHOP ON BEHALF OF THE PETITIONERS

Chief Justice John G. Roberts: We will hear argument next in Case 11-338, Decker v. Northwest Environmental Defense Center and Georgia-Pacific v. The Northwest Environmental Defense Center.

Mr. Bishop.

Timothy S. Bishop: Thank you, Mr. 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.

Chief Justice John G. Roberts: Well, before -- before we get into that, congratulations to your clients--

Timothy S. Bishop: Thank you.

Chief Justice John G. Roberts: --getting almost all the relief they're looking for under the new rule issued on Friday.

Timothy S. Bishop: Thank you.

Chief Justice John G. Roberts: And thank you for calling it to our attention.

Timothy S. Bishop: 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 silvicultural -- rock crushing and so on.

In this case, NEDC 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--

Justice Ruth Bader Ginsburg: 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 governed.

Timothy S. Bishop: --No.

It did not.

It did not.

Justice Ruth Bader Ginsburg: So is--

Timothy S. Bishop: That is an argument that Respondents have made in this Court.

Justice Ruth Bader Ginsburg: --And so that's not a point that this Court could resolve in the first instance.

Timothy S. Bishop: Well, I don't think that's -- I don't think that's right.

The -- the Respondent can defend its judgment on grounds other than those that were -- that were the basis of the Ninth Circuit decision.

Justice Ruth Bader Ginsburg: 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.

Timothy S. Bishop: Well, there is an additional reason why we don't think that the rule here moots -- moots the issue.

Let -- let's assume that there is a petition for review.

I think that's a fairly safe -- safe assumption.

That some environmental groups argue that the new rule is impermissible because it's at odds with the language of the -- language of the statute, an argument that I think is -- is near frivolous, but that I think will be -- predictably will be made.

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.

And--

Chief Justice John G. Roberts: Well, but it's -- 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.

Timothy S. Bishop: --Well, let me argue -- let me -- maybe--

Justice Sonia Sotomayor: I thought the case law was 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.

Timothy S. Bishop: --Well, I wish it were so clear.

Certainly, we think that that is the case.

What they've asked for below is penalties, attorney's fees and remediation of environmental harm.

Now -- now, we think that under Laidlaw 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 -- on the point.

But it -- you know, I do think that there doesn't appear to be any law on the application of Laidlaw to a claim for remediation.

Chief Justice John G. Roberts: Is this a -- 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?

Timothy S. Bishop: It's an amendment of the existing rule.

But what it does is to put into place against 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 Auer deference as a result of that.

Now, it's in the rule so it gets -- it gets Chevron deference.

Chief Justice John G. Roberts: Are you sure you want what you're asking for?

What if we go ahead and decide this case and rule against you?

Timothy S. Bishop: Well, we are -- we are hoping that you rule -- you'll rule with us.

And certainly on the basis of this rule--

[Laughter]

Justice Antonin Scalia: That's usually the objective.

Timothy S. Bishop: On the basis of this rule, you have to understand that the challenge to this rule is the claim that the -- the words “ associated with industrial activity ” must be interpreted by EPA to include harvesting activities and the -- the moving of the logs out of the harvest area.

Chief Justice John G. Roberts: Now, I suppose that your clients and others similarly situated, or I -- I guess it would be the Respondents, can challenge the new rule, right?

Timothy S. Bishop: Yes.

Chief Justice John G. Roberts: So you would have simultaneously pending a case involving the interpretation of the old rule and a challenge to the new rule.

Timothy S. Bishop: Right.

Chief Justice John G. Roberts: Each of which would have the same issue.

Timothy S. Bishop: And this Court can cut through all of that by deciding this case, which the simplest way to decide this case is under the stormwater rule.

If the Court decides this case in our favor under the stormwater rule, then that will preclude a large part of the basis for the challenge to the new rule.

It's squarely in front of this Court.

Mr. Fisher has made the argument here.

The stormwater rule is squarely here.

Congress completely revamped the Clean Water Act's approach to stormwater in 1987 and it made clear that as a default point-source stormwater is regulated by the state, with NPDES permits required only for discharges that are associated with industrial activity and a few other categories.

And those statutory terms “ industrial activity ” and “ associated with ” are both ambiguous.

And with those words, Congress left EPA with discretion to determine what activities count as industrial.

And it's in keeping with dictionary definitions for EPA to have categorized activities like law, banking, retail, agriculture, and silviculture as not industrial.

Justice Elena Kagan: But, Mr. Bishop, as -- as Justice Ginsburg said, that question was not decided below, and in the context of this case, which, of course, was very different when it was briefed, Mr. Fisher spent a grand total of 2 pages, and rightly so.

It wasn't -- it was -- it was not the main issue in the case then.

So would we really be doing something, you know, a good practice to decide this issue without really any briefing on it and without a decision below?

Timothy S. Bishop: Well, I think there is briefing on it.

I mean, both parties have briefed it.

It gets 2 pages because it's a -- a near-frivolous argument under the -- under the caselaw, I think.

But, the fact is, if you don't--

Justice Elena Kagan: Well, that isn't really quite fair.

It is 2 pages because it wasn't decided below and because -- and because the -- the question the -- in the case was very different, with a different regulation.

Timothy S. Bishop: --Now, the issue is before this Court.

If the Court doesn't decide the issue, then we go back, we have to fight for years about remedies, about the appropriateness of remedies for this adjudicated past violation under Laidlaw.

Laidlaw has some very complex law that's developed under it.

Justice Ruth Bader Ginsburg: You wouldn't have to do anything if the Court vacated the decision below.

Then you wouldn't be facing anything.

Timothy S. Bishop: Well, obviously, if the Court held the case was moot, then we'd like the -- the vacatur.

But in the--

Justice Ruth Bader Ginsburg: Would you be--

Timothy S. Bishop: --But if there's going to be a challenge to the new rule--

Justice Ruth Bader Ginsburg: --Would you be entitled to it?

Timothy S. Bishop: --Yes, we believe we are entitled to vacatur.

Justice Ruth Bader Ginsburg: So -- so if you're right that you're entitled to it and we agree with you, then there is nothing.

You don't have anything hanging over your head as a result--

Timothy S. Bishop: Well, what's left of--

Justice Ruth Bader Ginsburg: --of the prior decision.

Timothy S. Bishop: --what's left at that point is another 5 or 6 years of litigation under the new rule on an issue that is briefed in this Court, before this Court, and I think relatively easy to decide under the stormwater rule.

Chief Justice John G. Roberts: Which issue are you talking about?

The industrial activities issue or the silvicultural?

Timothy S. Bishop: The industrial activities issue.

I mean, the -- the rest of this case has become very complex, I think, because of -- of the, you know, the Government has raised the Seminole Rock argument that -- that no one's ever heard of before.

Mr. Fisher has introduced an argument about whether the 1375(b) categories -- the case falls within those categories.

But there is a simple way to decide this case and that is under the stormwater rule EPA had the discretion to determine what activities are industrial and it determined that timber harvesting is not industrial.

It defined “ immediate access roads ” in a way that does not cover these -- these roads even if it were industrial.

And these are terms -- the term “ industrial ” is one that is ambiguous.

The term “ associated with industrial activity ” is one that admits of degree.

It's like the word “ minimized ”--

Justice Sonia Sotomayor: How do we -- how do we avoid, under your reading -- assuming we agreed with you with what the rule says, that there is a difference between logging roads and access roads.

The other side raises a lot of question about whether these, in fact, are access roads or not.

So do -- do we need to--

Timothy S. Bishop: --The public--

Justice Sonia Sotomayor: --Do we have to reach that issue then?

Timothy S. Bishop: --The public -- no.

You don't have to reach that issue because the EPA has decided that the timber harvesting activity is not industrial.

In the rule -- implementing this rule with a -- a multisectored general permit for industrial activity, EPA said, quote:

"Harvesting activities, including loading and initial transport from an active harvest site, are not required to be covered under the stormwater permits. "

You know, it's been perfectly clear in -- when it promulgated the rule, it said that the reference to SIC 24 was a reference to sawmills, planing mills, and other mills.

When, in the briefs in this case, it -- it explained the reference to SIC 2411, it said:

"By not excluding SIC 2411, EPA intended to reference only the four categories of silvicultural activities already defined as point sources. "

So it's -- EPA has been--

Justice Sonia Sotomayor: So how do we--

Timothy S. Bishop: --absolutely clear that timber harvesting is not industrial activity--

Justice Sonia Sotomayor: --It may not--

Timothy S. Bishop: --and, therefore, it does not get to the “ associated ”.

Justice Sonia Sotomayor: --It may not be, but these are pipes, ditches, and channels which the CWA explicitly defines as point sources--

Timothy S. Bishop: Well, you can--

Justice Sonia Sotomayor: --that are not part of the harvesting.

By definition, they are not.

They're -- you're saying public roads and not access roads.

Timothy S. Bishop: --Well, remember that the stormwater rule applies to point sources.

The default position under the stormwater rule is that point sources do not require NPDES permits.

And then Congress said there are certain categories that do, and one of those is discharges that are associated with industrial activity.

EPA has said that under these terms, “ associated with industrial activity ”, “ in industrial activity ”, neither the timber harvest nor the roads:

"The initial loading and initial transport from an active harvest site are not required to be covered by stormwater permits. "

It says in the rule that immediate access roads are the only things that are covered.

It explains in the preamble to the 1976 rule that that means on-plant roads that are dedicated for use by an industrial facility, not public roads.

These are public roads.

These are used by hunters, fishermen, off-road vehicle enthusiasts, bird watchers.

These are fairly heavily trafficked public roads that are used for a few weeks every few decades for logging activities.

And so these are not, EPA has been very clear, the sort of--

Justice Anthony Kennedy: Am I correct or incorrect that a considerable number of these roads are -- a significant number of these roads were built initially by the logging industry?

Timothy S. Bishop: --Yes, some -- some of them surely -- surely were.

Justice Anthony Kennedy: And it's a little hard for you to say that when these were built by the logging industry and presumably maintained to some respect by the logging industry, to say, oh, well, these are used by hunters and so forth.

I--

Timothy S. Bishop: But -- but they are public roads.

They are owned by the counties or they're owned by the State.

These two particular roads that we are talking about here have been there between 50 and 75 years.

They run by the river.

There is a school bus pull-off on one of them because there are houses by the side of this road.

There -- these are -- these are quintessential public roads that are used by loggers from time to time.

Are they -- are they built there?

Are there other roads that are built by us?

Yes.

But they are public roads maintained by us under contracts with the State only during the period when we are using them for -- for logging activity, and otherwise maintained by the -- by the State.

So the -- and we think, to come back to your -- your initial question, Chief Justice, about whether this can be decided without getting into these other complex issues -- that you don't have to -- if you decide this case under the stormwater rule, it's -- and taking at face value what the Ninth Circuit said, which is the rule itself is not clear, we see the Ninth Circuit set a reference here to SIC 2411, which is logging.

We see this reference to immediate access roads.

So at -- at that point, we -- you look at what EPA has said.

And EPA's explanation in its 1976 preamble, in its briefs and in -- in this case, are -- are absolutely clear that there was no intention on EPA's part to cover the channelled runoff alongside these roads.

Justice Elena Kagan: Mr. Bishop, could I -- I'm sorry that I don't understand this well enough yet, but can I understand what's still at stake for you in -- in the case?

Put aside the question of whether the new rule is valid or not, all right?

And what -- what do you have riding on whether the Ninth Circuit's decision is correct at this point?

Timothy S. Bishop: Well, if there is -- if there is a vacatur, so that we don't have to worry about remedies below--

Justice Elena Kagan: Which remedies are you worried about?

Timothy S. Bishop: --Well, the remedies -- we are obviously not worried about injunctive relief.

We are worried about the relief that they have asked for, for past -- supposed past violations, which is penalties, attorney's fees, and I think the more complex one under the case law is remediation for environmental harm, which the case law just doesn't seem to address under -- under Laidlaw.

So we are worried about those.

And principally, what we would like to do is to get sorted out once and for all here an argument that otherwise would drag through the courts for the next five or six years under this rule, putting the whole industry into a good deal of uncertainty that we think is unwarranted.

If I can reserve the remainder of my time.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Stewart.

ORAL ARGUMENT OF MALCOLM L. STEWART, FOR UNITED STATES, AS AMICUS CURIAE, IN SUPPORT OF PETITIONERS

Malcolm L. Stewart: Mr. Chief Justice, and may it please the Court:

On Friday, the EPA administrator signed a new rule that amends EPA's existing regulatory definition of the term

"stormwater discharge associated with industrial activity. "

The new rulemaking specifically disapproves the Ninth Circuit's decision in this case and states explicitly that the only facilities under SIC Code 2411 that are industrial are rock crushing, gravel washing, log sorting and log storing.

Chief Justice John G. Roberts: Were you as surprised as we were to learn about that final rule?

Malcolm L. Stewart: No, we were not.

Chief Justice John G. Roberts: When did you learn that the final rule would be issued on Friday?

Malcolm L. Stewart: I learned on Friday morning that the final rule would be issued.

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--

Chief Justice John G. Roberts: You had no idea before Friday that this was coming out?

Malcolm L. Stewart: --I knew that it was a strong possibility -- I knew that it was a strong possibility that it would come out.

The EPA had issued a notice in September of proposed rulemaking.

There was a notation on OMB's website in early November to the effect that the rule had been transmitted for final approval by OMB.

Chief Justice John G. Roberts: In early November?

Malcolm L. Stewart: In early November.

Chief Justice John G. Roberts: Maybe in the future you could let us know when something as definite as that comes.

There were 875 pages on the merits briefing in this case, and if we knew that the final rule was imminent, we could have rescheduled the case for April or something along those lines.

Malcolm L. Stewart: I'm sorry, Your Honor.

We -- you know, we did explain in the opening brief that the rule had been--

Chief Justice John G. Roberts: Oh, I know, that there was a proposed rule.

Is it your experience that proposed EPA rules become final within a couple of months particularly?

Malcolm L. Stewart: --No, I think that -- well, I think this happened more quickly than it usually does, but I think we intended respect for the Court's processes rather than disrespect.

Obviously, it's suboptimal for the new rule to be issued the Friday before oral argument; but, it would have been even worse, I think, from the standpoint of the parties' and the Court's decision-making processes if the rule had been issued a week or two after the Court heard oral argument.

Chief Justice John G. Roberts: Well, maybe.

And it would have been best if we had known about this in early November.

Malcolm L. Stewart: With respect to the impact of the rule on this case, the new rule was not intended to change the meaning of the preexisting definition, and in our view it renders the case moot.

And, really, the point of issuing the new--

Justice Sonia Sotomayor: How do you deal with his points about the ex-fact remedies of attorney's fees and remediation.

Why are -- why are those moot?

Malcolm L. Stewart: --Well, I think the question of attorney's fees, if the Ninth Circuit's decision was vacated on the ground that the case would become moot, attorney fee's are available under the Clean Water Act and citizen suits only to prevailing or substantially prevailing parties.

And I don't see any way that Respondent could make a claim to be a prevailing or substantially prevailing party when, at the end of the day, it got no relief.

Now, with respect to questions of remediation, and particularly of civil penalties, the Court, in Steel Company and Laidlaw, addressed the circumstances under which civil penalties would -- could and could not be awarded in citizen suits.

And the Court in Steel Company said that in citizen suits, a citizen plaintiff lacks standing to seek civil penalties as a remedy for past violations because the citizen derives no benefit from payment of the penalties into the treasury.

In Laidlaw, the Court held that where there is a prospect of recurring violations or ongoing violations, the citizen plaintiff does have standing to seek civil penalties as a deterrent to future illegality.

Chief Justice John G. Roberts: Do you -- are you saying that the private companies would not be liable for civil penalties, even though the alleged violation was ongoing at the time of the district court litigation?

Malcolm L. Stewart: That's correct.

That even if -- if, by the time the suit was wound up, there was no prospect of an ongoing or future violation because EPA had amended the rule to make clear that the conduct was lawful, there would be no future illegality to deter.

And then there--

Chief Justice John G. Roberts: Well, can I stop you just for a moment?

EPA made clear that the conduct was not unlawful.

We have a new regulation.

The fact that they have issued a new regulation doesn't mean that the reading -- doesn't mean that that's a demonstration that the prior conduct under the old regulation was lawful.

Now, I know you've taken the position that it was not, but you've got a Court of Appeals decision saying it was.

Malcolm L. Stewart: --That's correct.

And if we actually had a civil penalty award issued by the district court in the first instance, it might be a complicated question whether that award should be vacated.

But the district court ruled in the petitioner's favor.

There was never any civil penalty award.

And so if -- if the question is can the district court at some future stage of this case enter a civil penalty award, under Laidlaw the only justification for that in a citizen suit would be to deter illegal conduct that might be thought to be possible after the civil penalty award was issued and--

Chief Justice John G. Roberts: That would have to be based on the assumption that the Ninth Circuit decision was wrong.

Malcolm L. Stewart: --It would not have to be based on the assumption that the Ninth Circuit decision was wrong at the time that it was entered; that is, even if EPA had done something that was explicitly characterized as a change in the law, if EPA had issued a rule-making that said, what Petitioners had been doing was unlawful up to this point, but we've decided that it shouldn't be unlawful, and, therefore, we're amending the rule to make it legal, if EPA had done that there would still be no prospect of future illegality, assuming that the rule is taken to be valid.

And, therefore, although in an EPA enforcement action, there might be a possibility of getting monetary awards for past misconduct because that's something the Government can do, the citizen's only stake in the matter would be to deter future illegalities.

Justice Antonin Scalia: What if -- what if the rule is held invalid?

I mean, we don't know the answer to that question until this rule is challenged and there is ultimately a -- I'm sure it will be challenged because their position is that the -- this rule contradicts the statute.

So how does that factor in to your analysis?

Malcolm L. Stewart: It certainly is possible that the rule will be challenged, but, as Petitioners have emphasized in their brief, and we agree, the proper forum for adjudicating challenges to the validity of an EPA regulation is through a suit brought against EPA based on the administrative record.

That is, a citizen suit against the petitioners--

Justice Antonin Scalia: I understand that, but my point is until that suit is concluded, you don't know whether there is a possibility of future violation or not, do you?

Malcolm L. Stewart: --You don't know.

But I think at this point the prospect that the EPA rule would be both challenged and vacated is sufficiently speculative that it would be out of keeping with general principles of mootness for the Court to go on to decide the question of what the old rule meant.

And, really--

Justice Elena Kagan: Is what you said true also of the remediation piece of this?

You said that at this point even if we understand this as a change in the law, the Plaintiffs would not be entitled to fines.

Would they also not be entitled to any kind of remediation?

Malcolm L. Stewart: --I think we would want to study that a little further.

The general rule, certainly, is that injunctive -- the propriety of injunctive relief is determined on the basis of the law in effect at the time of the Court's decision.

And under the newly promulgated rule, once the rule took effect, that -- that would be to the effect that the discharges from stormwater runoff are not covered, and an order requiring remediation would be a form of prospective injunctive relief.

It would address--

Justice Anthony Kennedy: Is it your submission that we should issue an order vacating this moot or issue an order for the Court of Appeals to consider whether it's moot?

Malcolm L. Stewart: --I think either one would be--

Justice Anthony Kennedy: What is your submission?

Malcolm L. Stewart: --Our preference would be that the Court issue an order vacating as moot; but, it would also be an appropriate decision to leave that to the Court of Appeals in the first instance.

And, again, EPA's objective in this was to obviate the need to decide vex questions concerning the meaning of the old rule.

That is, EPA has said for nearly 40 years that it doesn't believe that NPDES permits are the appropriate way of addressing the dangers to water quality that are posed by these sorts of discharges and--

Chief Justice John G. Roberts: I -- I'm having trouble seeing how we can dismiss it as moot when there would remain pending claims for civil penalties and injunctive relief, which you've already said you want to take a closer look at, and attorney's fees.

Now, you seem fairly confident that they'll lose on those, but you felt pretty confident that you'd win on this.

Malcolm L. Stewart: --Well, I think the one piece that we would want to take a closer look at is the specific question of remediation for past harm, that is, concrete steps on the ground to undo the results of past discharges.

The other two pieces of it--

Justice Elena Kagan: It seems strange that you would -- there would be an order of remediation to undo the results of past discharges when at this point the law going forward is, go ahead and discharge.

Malcolm L. Stewart: --I think that's correct, that, as I say, we haven't -- we haven't specifically focused on this question; but, my instinct is that an order of remediation would be an aspect of prospective injunctive relief that would be governed by the general rule that injunctive relief is to be determined under the law at the time of the Court's decisions.

But with respect to the other two elements of relief, I think those can be easily dealt with as a matter of law; that is, to the extent that they are seeking an injunction ordering that no further discharges occur without a permit, then clearly the propriety of that sort of injunction would be determined under the new rule, and it wouldn't be available.

And I think Laidlaw is clear that the only basis that a citizen has for seeking civil penalties is to deter future violations, not to punish prior violations.

Chief Justice John G. Roberts: Is this something that, in terms of mootness, we should evaluate under the voluntary cessation doctrine?

Malcolm L. Stewart: No, I don't believe so.

Because, here, the basis for mootness is not that the defendants in the suit have promised to change their ways; it is that the EPA has issued a new regulation to make clear--

Chief Justice John G. Roberts: EPA has changed its ways.

Malcolm L. Stewart: --Well, EPA is -- EPA is not the defendant in the case; so, even if this were viewed as a change in ways, it wouldn't be voluntary cessation.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Fisher.

ORAL ARGUMENT OF JEFFREY L. FISHER ON BEHALF OF THE RESPONDENTS

Jeffrey L. Fisher: Mr. Chief Justice, and may it please the Court:

It seems to me, in light of the recent events, that the most appropriate course for this Court is to just simply dismiss this case as improvidently granted.

If this Court had reached its -- had gotten a cert petition under the circumstances present right now, it seems to me there'd be three very strong reasons simply just to deny the petition.

First of all, because EPA, in its rulemaking on Friday afternoon, itself says that the Ninth Circuit decision has -- cancels out any impact of the Ninth Circuit decision on the ground moving forward.

Second of all, the case is interlocutory in posture.

Remember, we are just on a reversal of a motion to dismiss.

So every argument that's left in the case, in addition to whatever mootness arguments anyone wants to make, which I'll explain why in a moment we would disagree with, can all be made on remand to the Ninth Circuit.

And if people are unhappy -- or not on remand, but just simply when the case returns -- if people are unhappy with those results, they can bring the case back up to this Court.

And--

Chief Justice John G. Roberts: So if we do that, if we dismiss as improvidently granted, you still go back and you -- you get your attorney's fees, you get the civil penalties, you get remediation because the law governing your case would be the existing Ninth Circuit opinion.

Jeffrey L. Fisher: --Well, if that's where the case ends up when it's over and they bring it back and you deny cert.--

Chief Justice John G. Roberts: Well, the case is not--

Jeffrey L. Fisher: --But there's a much--

Chief Justice John G. Roberts: --I was just going to say the case is not going to be over if we dismiss.

Jeffrey L. Fisher: --No.

Chief Justice John G. Roberts: Because, as you just said, it's interlocutory.

Jeffrey L. Fisher: But that's my point, yes.

And -- but I want to make one thing very clear.

Justice Anthony Kennedy: But, in other words, it goes -- under your view, it would go back to the district court; the district court would try all this; and, as the Chief Justice says, we know what the law of the case is, if -- if the opinion stands.

Jeffrey L. Fisher: Well, the law of the case would be--

Justice Anthony Kennedy: And -- and so isn't -- isn't it fairly clear, well, we know that the district court must do under the court of appeals' decision?

Jeffrey L. Fisher: --All the district court must do under the Ninth Circuit decision is consider this to be a point source, for the reason that Justice Sotomayor mentioned, and that -- the other side has virtually walked away from that argument, anyway.

It is pipe, ditch or channel; it's perfectly obvious we're dealing with point sources here.

The only question is whether have you this covered by the stormwater rules, to the extent they are valid.

And that, the district court or the Ninth Circuit or whoever would consider in the first instance, and that could come back to this Court.

But if I might just explain to this Court, I think it will help the conversation if I explain exactly what our case looks like going forward, because we have and will maintain a claim for forward-looking relief for two reasons.

One is, for the reason that was mentioned a couple of times in the beginning part of the argument, because we contend that the new rule simply violates the statute, and we have a right to bring a citizen suit for a violation of the Clean Water Act itself, which is to say the language that requires EPA to regulate--

Justice Sonia Sotomayor: Is this a--

Jeffrey L. Fisher: --all discharges associated with industrial activity.

Justice Sonia Sotomayor: --So you're disclaiming that you have to go to the court of appeals; you think you can bring a citizen suit to challenge the validity of the regulation?

Jeffrey L. Fisher: Well, I wouldn't put it exactly that way, Justice Sotomayor.

What I would say is that we that have the power to bring -- or we have the right to bring a citizen suit to enforce the act.

And if there is a regulation that the other side brings up that says we are -- supposedly says we are exempt from having to get permits, our position is that regulation just simply doesn't fall under 1369(b)(1), for the reasons Judge Pryor just found for the Eleventh Circuit.

I sent that up as supplemental authority.

Justice Ruth Bader Ginsburg: But we didn't--

Jeffrey L. Fisher: It is, A--

Justice Ruth Bader Ginsburg: --But that -- that is the question, the question of what the statute requires, was not decided below.

Jeffrey L. Fisher: --That's correct, Justice Ginsburg.

The Ninth Circuit had no -- no reason to reach it because the regulations on stormwater as then written were absolutely clear that logging activities--

Justice Ruth Bader Ginsburg: And you're not urging that we reach it.

Jeffrey L. Fisher: --I think the most prudent thing, as I've said, is for this Court not to reach that, and to let -- as you described, to let a lower court look at it first, and to bring it back.

But if I can finish my question -- or my answer to Justice Sotomayor, the reason why that regulation doesn't require us to go to court of appeals in the first instance and actually lets us proceed on a citizen suit is because the only two subsections of 1369(b)(1) that they have mentioned are subsections (E) and (F).

Subsection (F) deals with EPA decisions, quote, “ issuing or denying a permit ”.

Well, this decision does neither of those things.

Secondly, it covers EPA actions that set effluent levels or effluent limitations.

And, again, for the reasons the Eleventh Circuit just held and other courts have held, this doesn't do that either.

So there is nothing in 1369(b)(1) that stands in our way of bringing a citizen suit to enforce the statute on those terms.

Justice Elena Kagan: Mr. Fisher, why would you proceed that way?

It's at least arguable that you're wrong on that.

I mean, it's a -- it's a question as to what 1369 does.

And you obviously do have the route of direct review.

Why don't you proceed that way with respect to the new regulation?

Jeffrey L. Fisher: Well, I think that what we'll do is proceed whatever way we can.

Because our -- you know, either -- either we are supposed to go directly to the Ninth Circuit -- or any court of appeals, or we are not.

And if we are, then we will; and if we're not supposed to go to the court of appeals, as we believe a fair reading of the law -- I don't think there is any plain text meaning of the law that could go otherwise -- then we have -- the only way we can do this is through a citizen suit.

Justice Elena Kagan: Do you think that, on your view of 1369, you can't go to the Ninth Circuit?

Jeffrey L. Fisher: Exactly.

And that's what the Eleventh Circuit just held in a case just like this, where there was a regulation at issue that exempted certain discharges from the permitting program.

And the Eleventh Circuit said, case dismissed.

You can't bring this directly to us.

So we have an ongoing claim for a violation of the statute, which I can't imagine this Court would want to address in the first instance.

We also, it's important to understand, have a second claim.

And before I describe that second claim, let me describe overall -- just remind the Court what exactly the case is about.

The case isn't about, as the other side has portrayed many times, all logging roads, all logging roads that may exist in the world -- or the United States.

What the case is about are two very specific kinds of logging roads: One, logging roads that drain themselves by way of pipes, ditches and channels, only the small subset of logging roads that do that; and, second of all, only logging roads used -- being used for active timber harvesting and hauling.

Not roads that just happen to be sitting in the forest not being used, but only the small subset of logging roads being used for active timber cutting and harvesting.

Justice Antonin Scalia: Active, what does that mean?

Jeffrey L. Fisher: It means under--

Justice Antonin Scalia: They -- they cut maybe, what, every -- every 10 years?

Is that active?

Jeffrey L. Fisher: --Well -- well--

Justice Antonin Scalia: What about the 9 years in between?

Are they being actively used?

Jeffrey L. Fisher: --No, Justice Scalia.

And so under this -- the facts of this case, remember, we're on a motion to dismiss, so when Mr. Bishop says 1 or 2 weeks out of whatever, we would like to have a record on that because we don't think that's reality.

But what the case -- what we say in our complaint is that they have a contract with the State of Oregon to harvest particular areas and use particular roads to access that timber and to take it out.

And the -- and the contract actually requires them to use those roads and to maintain their drainage systems.

And so our claim -- again, just to remind you what our claim is under the statute -- is that that harvesting activity can't be thought of in any other way than industrial in nature, and that these roads are associated with that activity.

They are designed for that purpose, and they're indispensable to the activity.

Now, we have a second argument.

Even if the Court thought that we couldn't win -- or a -- whatever court looks at this, thought we couldn't win on the statute, we have a Chevron step II argument that we will make, and have every right to make, because if -- I'll beg this Court's indulgence -- if -- this rule that they have just announced on Friday afternoon is not as clear as you might think.

So if you start with the language of the rule, which is on page 18, what they have done is they have amended -- they have amended the stormwater rules to -- to provide that the only industrial activities associated with logging are sawmills, which are covered elsewhere, and then these four categories of things: Rock crushing, gravel washing, log sorting, and log storage.

All--

Justice Anthony Kennedy: Excuse me.

This is page 18.

That's the last page.

Jeffrey L. Fisher: --It's page 18, the last page of -- at least, I'm -- I hope your copy is the same as mine, but on the PDF that -- that was sent up to the Court.

Justice Anthony Kennedy: And -- and so I'm reading under where it says “ stormwater discharges ”?

Jeffrey L. Fisher: Yes.

And if you go all the way to the bottom, sub 2, “ facilities classified under SIT 24 ”.

Justice Anthony Kennedy: Thank you.

Jeffrey L. Fisher: And they list those four things.

And -- and then industry group 242 is the sawmills.

So they are saying those are the only industrial activities that are associated with logging.

But that doesn't answer our claim.

Our claim isn't that logging roads themselves are industrial activities.

Our claim is that logging roads are associated with industrial activities.

And so we still have a claim that, under that -- even if those are the only four industrial activities -- or, sorry, five, those four things plus sawmills -- we still have a claim that logging roads are, quote, “ immediate access roads ” to those activities.

And the definition of “ immediate access roads ”, which is unchanged by the new regulation, is at Pet.

App. 40a -- the Ninth Circuit quoted it, and I think it was described earlier by my friend --

"Roads which are exclusively or primarily dedicated for the use by the industrial facility. "

So it's still a mystery to us how logging roads are not primarily for use by even sawmills or these other four things.

And, indeed, if you look very carefully at EPA's new regulation in the preamble on page 6, about two-thirds of the way down the middle of the page, the only sentence here that EPA gives us that even suggests a possible response to the argument I just described is the one that begins with the word “ unlike ”.

They say:

"Unlike immediate access roads associated with industrial activities, many logging roads -- many logging roads have multiple uses, including recreation and general transportation, and commonly extend over long distance, i.e., may not provide immediate access to an industrial site. "

So EPA is leaving open our argument.

EPA is saying: Well, logging roads that are just generally recreational, et cetera, are not immediate access roads.

But our claim--

Chief Justice John G. Roberts: I thought -- I thought -- I'm sorry.

I thought they said that their rules mooted this case.

Jeffrey L. Fisher: --Well, that's what they are standing here today saying.

But I'm telling you on the language that they gave us on Friday it doesn't moot the case.

And I can't imagine an argument being made on Monday that hasn't been prepared in any written form, based on a written thing that we got on Friday, that we have an argument under would moot our case.

And particularly, Mr. Chief Justice -- and this is my point about going through all this -- I can't imagine why this Court would want to touch all this in the first instance, particularly without supplemental briefing, but it seems to me to make every sense to let the Ninth Circuit address our arguments first.

Chief Justice John G. Roberts: Well, if we -- if we dismiss as improvidently granted, are you suggesting that the Ninth Circuit would then be the -- be a court to consider this?

Jeffrey L. Fisher: Yes.

Chief Justice John G. Roberts: I'm -- I'm just thinking if we vacate, perhaps another court will consider it, but if we dismiss as improvidently granted the Ninth Circuit will, quite reasonably, think they are done.

Jeffrey L. Fisher: No, because we have a forward look at the -- the first thing we'll tell the Ninth Circuit is--

Chief Justice John G. Roberts: Well, I mean, they're done -- they are done in terms of their interpretation of the regulation and the applicable law.

Jeffrey L. Fisher: --I think only as to the backward-looking regulation, but now we have -- our complaint, you know, as a citizen suit does--

Justice Anthony Kennedy: But then -- but then why -- why isn't your -- aren't your concerns met if we vacate for the court of appeals to consider in the first instance the extent to which this regulation may bear on its opinion?

Jeffrey L. Fisher: --Well, I -- I think that gets you very close to the same place, Justice Kennedy.

I'm just saying there is no reason to vacate because the Ninth Circuit's point-source holding is so self-evidently right that I don't know why you'd go to the trouble to do that.

It makes the case simpler going forward.

Chief Justice John G. Roberts: Well, I think the point -- the Ninth Circuit had the, of course, EPA's views before it.

I don't know, if I'm the Ninth Circuit, why I would reconsider my ruling in light of this new regulation.

Jeffrey L. Fisher: Do you mean the backward-looking ruling?

Chief Justice John G. Roberts: I mean the ruling in the decision that they--

Jeffrey L. Fisher: Right.

Chief Justice John G. Roberts: --issued that's before us today.

Jeffrey L. Fisher: Well, I don't know that they would reconsider that--

Chief Justice John G. Roberts: No.

Jeffrey L. Fisher: --but the -- but the main event going forward is the new rule, because the citizen suit seeks cessation of ongoing violations of the Act, and that remains the core of our lawsuit which is still seeking damages--

Justice Sonia Sotomayor: But that's the whole point, which is if you go back what's the value of the backward-looking construction if what you're seeking is injunctive relief that has to be based on the new rule.

Jeffrey L. Fisher: --It doesn't matter very much, Justice Sotomayor.

There is two ways in which it might matter a little bit.

One is if we want to press a claim for any kind of civil penalties or remediation, the backward-looking thing would matter.

We have to decide whether we would want to do that.

The second way it would matter would be it would provide a helpful baseline for judging the new rule in the totality of EPA action, which brings me to my -- which brings me back to the argument I was describing, which would be our Chevron step II argument, that EPA has simply either left this argument open -- I still -- it is still a mystery to us what EPA thinks about our real argument, which is that active hauling logging roads, when they are being used for active harvesting and hauling, are subject to the Act because they are plainly associated with industrial activity.

And if EPA later on came out and said, no, no, no, we mean to exclude that, too, then, we respectfully submit, EPA would still have a lot of explaining to do.

First of all, we would very much wonder why log sorting, log storage, gravel washing and rock crushing are industrial activities, but mechanized timber harvesting with 20-ton pieces of machinery is not.

We'd also wonder why this stuff isn't industrial activity where construction activity, landfill operations, surface mining operations that have all the same attributes of being done out in the field, extraction of resources, heavy machinery, etcetera, are, as the EPA itself admits, industrial activity; but, somehow, somehow, logging, which has all the same attributes, isn't.

And so that's what our claim is going forward now.

I'm not asking this Court to address that because I'm not sure this Court wants to get into all of this stuff yet; but, what I am telling this Court is, there is no basis whatsoever to find this case is moot, or I don't think this Court would want to touch any of the arguments being made here without further briefing, at least as to the new rule.

We do think it's absolutely clear we are dealing with point sources.

We do think it's absolutely clear, based on the language of 1369(b)(1), that there just can't be any way that there is a jurisdictional or whatever other kind of problem you want to label it with us bringing a claim based on the statute itself.

The new regulation just simply doesn't fall into those.

So if this Court dismisses the case, we'll go to the Ninth Circuit and tell them we want to go forward for the following reasons.

And if anybody is unhappy with what happens in the Ninth Circuit, obviously, we can file or they can file petitions for cert in this Court.

Let me just say one last thing to this Court about what we view as really the arbitrary and capricious nature of EPA's new rule and why you shouldn't touch it.

Remember, I said -- and this is in EPA's regulations themselves -- that construction activity, any construction activity in a site five acres or more is industrial activity.

So if a developer buys a parcel of forested land and wants to build a subdivision there, and the first thing the developer does is punch in some roads and drainage systems and cut some trees down to make room for the houses, that is covered by the EPA's stormwater rules; but, if a logging company does precisely the same thing, EPA's position seems to be it's not covered.

And not only is it not covered if it happens on public land, but I think at least the implication of my friend's position is that for logging companies, of which there are many in the northwest, that own their own land, own their own giant pieces of forest land, and that are not open to the public, that are not open to hunters, that are not open to recreation, but they have their own logging roads on their own private lands that nobody can use but them, I still think his position is that's not covered by the Act.

And finally, EPA has one other thing that I want to point out to the Court about this new rule.

And it's, again, got our heads -- it gets our heads scratching as to what EPA is really doing here.

EPA says twice in the preamble to their new rule, once on page 7 and also on page 12, that it, quote, retains the authority to designate at least some logging roads as covered by its so-called point -- Phase II system.

What the Phase II system is, is under Section 1342(p), which is the stormwater amendments to the Act, it's the category of point source discharges that EPA says are not a covered -- are not industrial activity, associated industrial activity, but we nonetheless are going to require certain things of them.

This is the critical point.

EPA says this twice.

Well, the only authority EPA would have to regulate any logging roads, discharges from logging roads, is if they are point sources, because you don't get into the Phase II program, you don't get into the stormwater amendments unless you have a point source.

If it's a non-point source, then, as my friend has pointed out quite at length in his brief, it's entirely up to the State and EPA has nothing to say about it.

Justice Antonin Scalia: I'm looking at page 7 and it doesn't say the authority to designate additional roads.

It says additional stormwater discharges.

Jeffrey L. Fisher: Right.

Justice Antonin Scalia: That could be stormwater discharges that have nothing to do with logging.

Jeffrey L. Fisher: I think if that's all we had, Justice Scalia, it might be a little bit ambiguous, although of course this is in the context of logging the roads.

But look at page 12.

And this is the final -- this is the very end of -- of the preamble.

The last sentence:

"EPA believes that stormwater discharges from forest roads, including logging roads, should be evaluated under section 402(p)(6). "

The only authority EPA has for doing that is if they are point sources, whereas EPA has filed a brief in this case that says that they are, at least some of them, are not.

I don't know if it's walking away from that or is planning on walking away from that, but again there is a variety of questions I think that EPA should have to address and answer -- Did you have one?

I'm sorry -- that EPA should have to address and answer before any court does anything based on this new rule.

Justice Ruth Bader Ginsburg: But if you were challenging the new rule, you would have EPA as your adversary.

The format of this case now is we have -- we have Decker on one side and you on the other and the EPA is not in the lawsuit.

Jeffrey L. Fisher: Well, EPA of course is an amicus, Justice Ginsburg, and EPA has an ongoing right to intervene in any citizen suit.

That's a statutory right.

And it's a statutory notice that any plaintiff in a citizen suit is required to provide to EPA, which we did provide to EPA.

And so EPA has every right to intervene in the case at any point as a party.

Justice Sonia Sotomayor: Does that include a right to intervene and dismiss the action?

Jeffrey L. Fisher: Well, I think that EPA has a right to intervene and make an argument that the case is moot or any other substantive argument they would like to make back in the Ninth Circuit.

And of course, mootness, if it's genuinely moot, which for all of these reasons we think of course it's not, but mootness is an Article III principle that an amicus could raise and a court would be bound to consider on its own.

Justice Antonin Scalia: Yes, they are just intervening.

It's not like what happens in the -- in the suits for fraud against the Government where they take over the litigation.

Jeffrey L. Fisher: Right.

Justice Antonin Scalia: They don't take it over.

They just intervene.

Jeffrey L. Fisher: I think that's what would happen.

You could ask them how they would like to proceed, but I assume that's how it would happen and I assume the defendants in the case would remain the same.

So I'm happy to answer any other questions about what the case looks like or what you ought to do, but otherwise I'll submit it.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Bishop, you have 4 minutes remaining.

REBUTTAL ARGUMENT OF TIMOTHY S. BISHOP ON BEHALF OF THE PETITIONERS

Timothy S. Bishop: Thank you.

We are not asking you to adjudicate the new rule.

I'm not sure why we are hearing all of this about the details of the new rule.

What we are asking you to do is to get rid of this case.

In getting rid of this case on the basis of the stormwater rule, it will eliminate one of the arguments that the plaintiffs will make in a -- in a challenge to the new rule.

It will simplify that challenge.

What it will do is to get rid of this case and get rid of a Ninth Circuit opinion that really put the court in a -- the position of overriding what EPA has been saying consistently since 1976, consistent position that collected forest road runoff is not point source, and since 1980 that logging is not industrial activity and these roads are not associated with industrial activity.

And for my clients, that is -- has a great deal of values, particularly since, as Mr. Fisher has admitted, what he really wants here is to be back in the Ninth Circuit seeking not only, apparently, relief, backward-looking relief, but also prospective relief.

If there are no further questions, I'll submit.

Chief Justice John G. Roberts: Thank you, counsel.

The case is submitted.