U.S. Supreme Court

Once Again, SG's Office Is Source of Chief Justice's Frustration

Chief Justice John G. Roberts Jr. appeared irritated with the Solicitor General’s office on Monday, the second time in a week in which he expressed frustration with a government lawyer.

Last week Roberts said it was “a little disingenuous” for the office to attribute a change in a Labor Department position to “further reflection” rather than a change in administration. On Monday, Roberts asked about a last-minute regulation by the Environmental Protection Agency that affects two consolidated cases before the court. The New York Times, the Associated Press and the Washington Post have stories.

At issue in the case is whether timber companies have to obtain Clean Water Act permits to operate logging roads. Malcolm Stewart, a lawyer in the Solicitor General’s office, argued the new rule made the case moot.

“Maybe in the future,” Roberts told Stewart, “you could let us know” about the impending rule.

“There were 875 pages on the merits briefing in this case,” Roberts said, “and if we knew that the final rule was imminent, we could have rescheduled the case for April or something along those lines.”

Stewart had recommended the government deny cert in the case because the EPA intended to deal with the issue through its rule-making authority, but the lawyer “did not remind the justices,” the Post says. The AP article is headlined, “Supreme Court lawyer looks for nice way to tell justices ‘I told you so’ in environmental case.”

The cases are Decker v. Environmental Defense Center and Georgia Pacific-West v. Environmental Defense Center.

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