Where will Obama side on mud puddles?

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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.

Georgia-Pacific is headed to the Supreme Court, which will decide in June whether to hear it. It has asked Obama's solicitor general for his position.

So far in the litigation process, the Obama EPA and Justice Department have sided with the industry, adhering to the traditional, 35-year-old interpretation of EPA rules. But in its most recent brief, the federal government's lawyers included a curious passage that has caused a small panic among the logging industry's legal team.

It essentially asserts that EPA has never before officially stated its decades-old position in writing, that runoff collected in man-made roadside ditches counts as "natural runoff."

Tim Bishop, the attorney who will argue the case before the Supreme Court if it receives a hearing, told me this statement is factually false, and that it nearly disowns the position that EPA has always taken.

"They seem to be backing off," he said.

Is Obama preparing to ditch another decades-old precedent, as he did with the rules concerning union elections in the airline industry? Might he side with his Big Green environmentalist political allies once again, as he did with the Keystone XL pipeline, and thus sacrifice large numbers of private-sector jobs that cost taxpayers nothing?

We should know the answer within a few weeks.

David Freddoso is The Examiner's online opinion editor. He can be reached at

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