Ninth Circus tries to shutdown logging with mud puddle rule

David Freddoso:

If jobs are on President Obama's mind, he should care about the U.S. logging industry. In 46 of the 50 states, forestry ranks in the top 10 manufacturing industries. It employs about 2.5 million Americans and pays $87 billion in wages annually. Its annual sales are $230 billion, including exports of roughly $35 billion.

Those jobs and that revenue now face a man-made crisis -- more specifically, a Big Green environmentalist-made crisis. Obama's administration could weigh in on either side.

For 35 years, the Environmental Protection Agency has understood silviculture -- the act of harvesting trees, as opposed to processing them -- to be an agricultural activity, not a manufacturing one. The distinction is vital because of particulars in the Clean Water Act. Runoff from "point-source" manufacturing facilities (including saw mills) is closely regulated. Permits are required, and an involved monitoring and remediation process is prescribed.

On the other hand, the "natural runoff" from forest roads -- basically mud puddles that accumulate in ditches -- has never required such permits or monitoring. It is cared for through what is known as "best management practices."

But in the case Georgia-Pacific West Inc. v. Northwest Environmental Defense Center, the Ninth Circuit Court of Appeals turned this long-standing rule on its head. The court said that the EPA has been misinterpreting its own rules for 35 years, and that, in fact, forest roads must be regulated in similar fashion to factories and power plants.

The Ninth Circuit decision, if upheld, would crush forestry in the Pacific Northwest. As Democratic Sen. Ron Wyden of Oregon put it, "One court would shut down forestry on private, state and tribal lands by subjecting it to the same, endless cycle of litigation."

The many millions of dollars needed to obtain EPA permits ($160 million in Washington state alone) are actually the easy part. The hard part begins with the monitoring and remediation of mud puddles along tens of thousands of miles of forest roads.

It ends in the courtroom, where the Clean Water Act's citizen lawsuit provision would allow anyone to drag foresters, landowners or local governments any time a puddle is improperly neglected.

The Clean Water Act has historically empowered well-funded Big Green environmental groups to tie up industrial activity in court. Other provisions of federal law force taxpayers to pay them any time they succeed.

The Ninth Circuit's ruling could empower them to shut down entire forests and many livelihoods. Imagine trying to do business, knowing that at any moment, a well-funded group of litigious environmentalists -- like the plaintiffs in this case -- could shut you down.

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This is another example of liberal job killers and a liberal court that lacks common sense.  Not only does the logging industry provide millions of jobs, it also provides materials for home building and other products that are important to our economy.  They are much more important than mud puddle regulation.  Congress should also look at repealing parts of the Clean Water Act that lead to this kind of judicial abuse.  They could start by not allowing Big Green to profit from this kind of litigation.