A shame there wasn’t a rejoinder to Milan Smith’s political hissy fit in dissent. I will provide one here.
 
1. NEDC v. Brown (requiring Clean Water Act NPDES permits for timber roads) – Congress made statutory exceptions from the definition of “point source” for only a relative small subset of certain acts relating to industrial activities. Timber roads weren’t among them. The Ninth Circuit enforced the plain language of the statute as Congress wrote it and invalidated the EPA reg to the contrary. Plain language! Doing exactly what Congress said! Where’s the outrage, conservatives?!  

Smith contorts himself by saying that “in the nearly four decades since the Clean Water Act was enacted, no court or government agency had ever imposed such a requirement.” Right, because they couldn’t, because the plain language didn’t allow it. The courts and agencies simply weren’t enforcing the statute.

Smith goes on to engage in revisionist history with respect to the timber industry in Oregon. Anyone with a brain knows that so much old growth was taken out before 1990 at such a high rate that there’s hardly any left, thus rendering logging at historical rates impossible, much less even remotely economical. It will be another generation at least before it comes back. All we are fighting over now is whether to sell the remaining stands to China and Japan, which is a ludicrous idea that Smith apparently has some attachment to.

2. Pacific Rivers Council v. USFS (remanding Sierra Forest plan) – the outer limits of the scope of an agency’s environmental analysis, whether for a site specific or programmatic plan, will always be a fact-specific inquiry. What is being proposed and what must be analyzed changes with every case. A fixed boundary is a fool’s errand for such an inquiry, and indeed, the type of fixed boundary that Smith proposes (analysis never required) is just the mirror image of the fixed boundary that he imagines exists (must always analyze).

3. San Luis & Delta-Mendota Water Authority v. US (affirming water accounting by Dept. of Interior) – Smith is just wrong about the discretion that Congress afforded to the Executive branch under the statute, and wants to close off the discretion by overruling the agency and substituting his own judgment. That’s about as activist as it gets. Not that the fish are going to get enough water anyhow, but Smith doesn’t care about that.

Really, this is about Smith and his clerk being constantly and repeatedly put in their place by Fletcher, who has either authored or been in the majority of each of the opinions Smith complains about.