How Supreme Court Decision Could Reignite PNW’s Biggest Environmental Battles

Andrew Miller / oregonlive.com (TNS)

Since the “timber wars” of the 1990s in the Pacific Northwest, the federal Northwest Forest Plan has addressed environmental protection and logging in regional forests.

The plan was developed by a team of scientists from various fields, aligning its rules with congressional mandates. The Forest Service announced earlier this year that it intends to update the rules to address the growing challenges of wildfires and climate change.

But environmental advocates in Oregon say those rules, as well as many others issued by federal regulatory agencies, could now be in jeopardy. Late last month, the Supreme Court overturned what’s known as the Chevron decision, a long-standing precedent that lower federal courts should defer to agencies — staffed by experts — on “reasonable” rule changes to enforce legislation.

The ruling effectively means federal regulators will have a harder time defending these rule changes in court. It could also make it easier to challenge existing rules.

Industry groups and conservatives say the Chevron decision gave too much power to the executive branch. Liberal groups largely agreed with the doctrine, arguing that judges should be guided by expert policy advice.

The federal government owns more than half of Oregon’s land, meaning the decisions of federal regulatory agencies play a disproportionately large role in the state. But environmental groups that pushed for some of those decisions worry they could be overturned in the courts, threatening land-use policies, logging restrictions and endangered species protections.

Neither regulatory agency responded to questions about the ruling’s impact on the rulemaking process.

But industry groups, environmental organizations and lawyers say a wave of challenges is inevitable.

Daniel Rohlf, a professor of conservation law at Lewis & Clark Law School, said the overturning of the Chevron ruling could be deepened by another lesser-known ruling from last month — Corner Post Inc. v. Board of Governors of the Federal Reserve System.

He said there used to be a six-year statute of limitations for challenging federal regulations, starting when the regulation was implemented. But now the six-year period starts when the regulation begins to affect the entity filing the challenge.

Rohlf said that means the old rules could be opened up to litigation. And he expects future challenges could upend an already overworked legal system.

“It’s kind of a full-employment bill for administrative lawyers,” he said.

The Supreme Court ruling in the Chevron case could also reignite some of Oregon’s fiercest conservation battles.

The federal Bureau of Land Management administers 16 million acres of public lands in Oregon and Washington, used for grazing, logging and many aspects of Oregon’s rural economy. Many timber industry advocates say the agency has been too restrictive on land use, while other environmentalists say it has allowed too much logging.

Grazing regulations and fees have proven particularly controversial. Issues over grazing regulations came to a head in 2016, after a federal judge ordered Harney County ranchers Dwight Hammond Jr. and his son Steven Hammond to return to prison for setting fires on federal land in 2001 and 2006. An appeals court ruled that the earlier sentence was too lenient.

In response, a group of armed protesters took over the Malheur National Wildlife Refuge in eastern Oregon and encouraged ranchers to stop paying grazing fees. The occupation lasted 40 days, leading to 27 arrests and the fatal shooting of the leader of the occupation by police at a roadblock. President Donald Trump pardoned Dwight and Steven Hammond in 2018.

Rohlf said Clean Water Act regulations also play an important role in Oregon by promoting protection for salmon and rainbow trout and by limiting water pollutants that can contaminate or harm water.

“This is the type of pollution that tribal communities are disproportionately exposed to because they consume so much more fish,” he noted.

Irrigation in the Klamath Basin, where advocates say farmers are not getting enough water to fully irrigate their fields, is a flashpoint that could soon lead to litigation. Farmers say restrictions imposed by federal agencies that have regulatory authority over endangered fish species have caused the problem, not a lack of water.

However, numerous court decisions in recent decades have confirmed that the government must protect the water rights of tribes and the needs of endangered species in the river basin.

Greg Addington, executive director of the Oregon Farm Bureau, said he supports repealing Chevron. Federal agencies, he said, don’t admit when they make a bad decision.

He said showing respect to agency officials is “a bit like the fox guarding the henhouse.”

Associated Oregon Loggers Inc. said reversing Chevron’s decision would force Congress to pass more precise rules, reducing confusion about the responsibilities of individual regulatory agencies.

“While small forestry operators often support federal agency expertise in public forest management projects, this change could help curb politically motivated abuses of agency power,” the trade association said.

Quinn Read, director of conservation affairs for Bird Alliance of Oregon, said she was concerned the ruling would make judges, who are not typically experts in environmental policy, the arbiters of that policy.

She said recent legislation aimed at addressing climate change is particularly at risk. That’s because many of them are based on environmental laws written more than 50 years ago, she said, when climate change was less understood or discussed, much less written into legislation.

Read said the ruling could also cause regulatory agencies to be too cautious about changing regulations, which could result in less ambitious environmental protection plans and a slower response to new scientific discoveries on climate change.

The Northwest Forest Plan is also a major concern for her organization. The plan regulates land use and endangered species — such as the northern spotted owl, which has sparked the fires of the timber wars. But that plan could be in jeopardy, she said in a later email, and ecologists in the Pacific Northwest should keep an eye on it.

“The survival of species like the spotted owl and the marbled razorbill may depend on how the Forest Service responds to a post-Chevron world,” she said.

Although the cases that led to the Chevron case being overturned were brought by industry groups seeking to ease regulation, the decision could have a double-edged sword.

Rohlf, the conservation law professor, said overturning the Chevron ruling could also allow environmental groups to challenge efforts by the conservative administration to ease regulations it sees as burdensome or overreaching.

“It’s going to be a wild ride,” he said.