I attended oral argument on Monday in Decker v. Northwest Environmental Defense Center (11-338).
Honestly, I am not too familiar with the ridiculously long posture of Decker. But, the only question left now is what the Justices will do with it.
The attorney who represented the logging industry was begging the Justices not to send the case back to the 9th Circuit. When pressed for the reason why by Justice Kagan, I think the attorney wisely held his cards.
Justice Kagan: 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?
MR. 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.
The attorney continued the point from a question from RBG:
JUSTICE 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 -
MR. BISHOP: Well, what’s left of -
JUSTICE GINSBURG: — of the prior decision.
MR. 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.
Again, he raised the specter of litigating 5 or 6 more years before the 9th Circuit:
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.
Not just any court. The 9th Circuit.
But the tenor of his argument was basically, for the love of god, don’t make us litigate again before the 9th Circuit. We will lose, and spend years and lots of money before that court. Just vacate the opinion and let us be done with this.
Jeffrey Fisher, arguing for the environmental group recommended the Court DIG (dismiss as improvidently granted) the petition. That would have the effect of leaving the 9th Circuit’s opinion in force. In other words, please don’t take away that amazingly pro-environmental opinion from Willie Fletcher. Just let it stand and let us be done with it.