Regulatory burden, EPA, and the 9th

It seems the U.S. Ninth Circuit Court of Appeals really earns its reputation for questionable decisions when it comes to environmental issues. Jonathan Alder describes the situation in Is the Ninth Circuit Due for Environmental Correction?.

“In the normal course of affairs, an SG brief recommending against cert is a likely indicator that the Supreme Court will deny certiorari. Yet that has not been the practice of late in environmental cases. The Supreme Court has taken quite a few environmental cases in which the federal government lost below but nonetheless urged the Court to take pass, including Entergy, Coeur Alaska, Monstanto v. Geerston Farms, and Environmental Defense v. Duke Energy. It’s almost as if the Roberts Court does not trust the judgment of the SG’s office as to whether environmental cases are cert worthy.”

Alder quotes from a dissenting opinion of one of the 9th circuit judges that identifies some of the problems.

“Oregon political leaders have good reason to be concerned about the impact of our rulings on logging. Decades of court injunctions already have battered the state’s timber industry, once a dominant employer that paid excellent wages. In the 1970s and 1980s, the wood product industry employed more than 70,000 Oregonians and paid 30 percent more than the state average wage. Now, the industry employs 25,000 people and pays the state average wage. Josh Lehner, Historical Look at Oregon’s Wood Product Industry, Oregon Office of Economic Analysis, Jan. 23, 2012, available at . Requiring millions of burdensome new permits will only accelerate the decline.”

“No legislature or regulatory agency would enact sweeping rules that create such economic chaos, shutter entire industries, and cause thousands of people to lose their jobs. That is because the legislative and executive branches are directly accountable to the people through elections, and its members know they would be removed swiftly from office were they to enact such rules.”

The particular case here is overturning 40 years of existing practice by the EPA deciding that permits are needed for storm water runoff from timber roads. That is exactly the sort of thing that enhances the ‘anti-business’ image of the current administration. Not only are major industries being required to spend significant effort in obtaining permits, they also need to expend significant sums in defending their traditional means of doing business. The lumber companies have a vested interest in healthy forests but, to listen to the current administration, you’d not think so.

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