Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, et al. and Alaska v. Southeast Alaska Conservation Council, et al.

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Authorship: Max Schwartz

Contents

[edit] Briefs and Documents

Docket: 07-984 and 07-990

Issue: Whether the U.S. Army Corps of Engineers may not issue a permit for discharge of fill material otherwise subject to effluent limitations under Sections 301 or 306 of the Clean Water Act.

Merit briefs

Amicus briefs

Oral Argument Transcript

Decision Reversed and remanded in an opinion by Justice Kennedy

[edit] Pre-Argument Articles

[edit] Argument Preview

In these cases, consolidated for argument, the Court wades into the permitting process for discharging mining pollutants under the Clean Water Act. The question before the Court is whether stricter permitting regulations actually control this permitting process, even when the process facially conforms to the definitions of another permitting authority,

[edit] Background

The Clean Water Act (33 U.S.C. § 1251 et seq.) regulates the discharge of pollutants into the “navigable waters” of the United States. Under Section 402 of the Act, permits for the discharge of pollutants are primarily handled by the Environmental Protection Agency (EPA), which – pursuant to the National Pollution Discharge Elimination System (NPDES) – is charged with promulgating standards that limit pollution discharge to the greatest extent achievable, “including, where practicable, a standard permitting no discharge of pollutants.” Meanwhile, under Section 404 of the Act, the Army Corps of Engineers retains authority to regulate the “discharge of dredged or fill material” into waterways or wetlands. While the Act does not define “dredged or fill material,” EPA and the Corps, after years of using differing (and somewhat conflicting) definitions, eventually settled on a uniform definition: fill material was any material, excluding garbage, having the effect of “replacing any portion of a water of the United States with dry land; or changing the bottom elevation of any portion of a water of the United States.”

For approximately twenty years, petitioner Coeur Alaska has sought to extract gold from the Kensington Mine in southeast Alaska using a process known as “froth flotation mining,” which removes rock from the mine, grinds it into fine gravel, and pumps it (along with various chemical agents) into large water tanks. The addition of these chemical agents causes bubbles to form around the gold-bearing ore and float to the top of the tank, where the ore is skimmed off. Although some of the remaining material – known as tailings – can be redeposited in the mine itself, a significant amount (as much as 4.5 million tons in this instance) must be discarded elsewhere. Originally, Coeur sought a permit to create dryland storage for the tailings. But after the price of gold dropped, Coeur instead proposed to dam nearby Lower Slate Lake and deposit the tailings (in the form of a semi-liquid “slurry”) in the lake, thereby raising the bottom of the lake by approximately fifty feet and causing the lake’s surface area to triple in size. Coeur applied for, and received, a permit from the Corps under Section 404 of the Act.

Three conservation organizations, Southeast Alaska Conservation Council (SEACC), the Sierra Club and Lynn Canal Conservation, appealed the Corps’ decision. They contended that Coeur’s actions were governed by the NPDES program set up under Section 402 of the Act, and in particular by a 1982 EPA regulation prohibiting the “discharge of process wastewater to navigable waters from mills that use the froth-flotation process.”

Coeur and the state of Alaska intervened on behalf of the Corps and filed a motion for summary judgment, which the district court granted. SEACC appealed to the U.S. Court of Appeals for the Ninth Circuit, which reversed in a unanimous decision. Although the panel conceded that Coeur’s operation “facially meets the Corps’ current definition of ‘fill material,’” it examined the plain language of the CWA and deemed the 1982 no-discharge standard controlling. Specifically, the panel relied on passages in Section 301 of the Act, which prohibits any discharge that does not comply with a series of other sections in the Act. In the panel’s view, the wording of that section (and in particular the use of the conjunction “and” rather than “or”) indicated that any discharge of pollutants—even those that facially qualify for permitting under Section 404—must also comply with various limitations and discharge standards created under other sections of the Act. In so holding, the panel rejected Coeur’s argument that because Section 402 specifically provides that discharges governed by that provision are subject to the other standards, while Section 404 does not, Congress had created an implied exemption for permits sought under Section 404. Instead, the panel found a much simpler explanation for the disparity between the two sections: the existence of a discharge standard or limitation completely precludes the use of Section 404 permits, and the only reason why Congress did not explicitly so state in Section 404 is because it intended any such discharge to be automatically regulated under Section 402.

The panel also looked to the historical regulation of froth-flotation mining and the Section 404 permit. As mentioned above, the two permitting agencies—EPA and the Corps—had long held conflicting definitions of “fill material.” Moreover, EPA, under Section 402, had promulgated a series of standards for various pollutants with large concentrations of suspended solids, which could qualify as “fill material” under Section 404, including wastewater discharge from froth-flotation mining (the “no discharge” standard mentioned above). When the two agencies promulgated a joint regulation regarding fill material in 2002, the panel noted, both the regulation and their joint response to public comments consistently emphasized the continuing applicability of previous discharge standards, including to those materials which would now fit the definition of fill material.

[edit] Petitions for Certiorari

After the Ninth Circuit denied rehearing en banc, both Coeur and the state of Alaska filed petitions arguing that certiorari was warranted for three reasons. First, the Ninth Circuit’s ruling “contravened the text and structure of the [CWA]” and conflicted with the Supreme Court’s decision in Rapanos v. United States (2006) by conflating the Section 402 and Section 404 permitting programs. Second, by refusing to defer to the Corps of Engineers’ own definition of fill material, the Ninth Circuit had disregarded the Supreme Court’s historical interpretation of the Administrative Procedure Act, as well as rulings by the Fourth Circuit in another mining case, Kentuckians v. Rivenbaugh (2003). Finally, petitioners asserted that their claims were of “exceptional national importance” because the Ninth Circuit’s decision had so “radically alter[ed] the longstanding structure of the Clean Water Act’s discharge permit programs,” that it would cause significant harm to the economies of western states and the nation itself.

Opposing certiorari, SEACC disputed petitioners’ argument that the Ninth Circuit’s decision conflicts with Rapanos and Kentuckians. Kentuckians is distinguishable, they contended, because the pollutant at issue in that case—overburden, the uprocessed rock which covers a seam of more valuable rock—had not previously been regulated under the NPDES program, unlike the tailings in the current case. Rapanos is similarly distinguishable because the legal questions in that case dealt with the exclusion of certain water bodies from the “waters of the United States.” In this case, by contrast, there is no dispute that the water in question is part of the “waters of the United States”; the mere fact that Rapanos also involved the dumping of fill material did not, by itself create a conflict.

Interestingly, the Solicitor General, on behalf of the Corps of Engineers, also argued against granting cert., even though the Corps was on the losing side of the lower court’s decision. While the government “agree[d] that the court of appeals erred[,]” it saw no reason for the Supreme Court to review the issue at the current time: no circuit split exists on this question, and – at least in the government’s view – although the decision will have “a significant impact on a number of mines, it is unclear how important the court’s decision will prove to be.” After recommending that cert. be denied, however, the government turned to the merits of the case and agreed with the petitioners that the Ninth Circuit’s decision incorrectly interpreted the CWA and collapsed the distinction between the Sections 402 and 404 permitting programs.

The Supreme Court granted cert. in both cases on June 27 and consolidated them for one hour of oral argument.

[edit] Merits

In its merits brief, Coeur Alaska immediately attacks the decision below, stating that “the Ninth Circuit’s holding that Coeur’s Section 404 discharge permit violates the Clean Water Act is plainly erroneous.” Coeur posits that both rationales for the Ninth Circuit’s decision—that the discharge permit issued to Coeur contravened the text of the Clean Water Act (CWA), and that the Corps unreasonably interpreted its own regulations in issuing its own permit—were wrongly decided.

While the Ninth Circuit held that the CWA requires that permits issued under Section 404 cannot conflict with the regulations created under Sections 301(a) and 306(e), Coeur argues that the various permitting programs laid out in the provisions under issue are mutually exclusive, and therefore any Section 404 permit needs not comply with regulations in 301 or 306. Coeur further argues that, because of the deference courts generally accord to regulators in constructing various statutes, “The Ninth Circuit’s acknowledgement that the proposed discharge ‘facially meets the Corps’ current regulatory definition of “fill material,”’ therefore ought to have been both the beginning and the ending of the court’s analysis.”

Turning to the regulatory history of the Fill Rule—which created the permitting authority at issue here, and defined “fill material” as “material placed in waters of the United States where the material has the effect of...[c]hanging the bottom elevation of any portion of a water of the United States,” and allowed the Corps to issue Coeur the permit at issue—Coeur argues that, while the Ninth Circuit should not have looked beyond the text of the CWA, even considering the history supports its view of the case.

Both the state of Alaska and the Army Corps of Engineers submitted briefs as well—largely supporting the arguments made by Coeur Alaska. In general, both briefs highlight the differences between permitting programs established under Section 402 of the CWA—the National Pollution Discharge Elimination System—and Section 404, the “fill material” permits at issue in this case. They also argue that statements made by the Corps and the EPA in the regulatory history resolve any ambiguity as to whether mine tailings of this sort are regulated under 402 or 404.

In their brief, the respondents—Southeast Alaska Conservation Council, Sierra Club and Lynn Canal Conservation—begin by outlining the pollutants contained in process wastewater from a mine such as the Kensington Mine, and the effects they contend will occur when that water, along with mine tailings, are deposited in Lower Slate Lake. The EPA concluded that, “the weight of the evidence suggests that restoring and ‘improving’ the lake would take decades, not years,” they noted.

Respondents then turn to the legality of that discharge. Unlike Coeur Alaska, which focused much of its brief on the differences between Sections 402 and 404 of the CWA, respondents focus instead on Section 306(e), which prevents any new sources from operating “in violation of any standard of performance applicable to such source.” Because 306(e) contains no exceptions, they argue, turning to the Section 404 permit without first confirming that a source is in accordance with 306(e) “jumps the tracks.” As there is already a standard set up to govern the “discharge of process wastewater to navigable waters from mills that use the froth-flotation process,”—a standard which sets as its goal a total prohibition of those discharges, allowing a 404 permit in this instance contravenes the intent of the CWA.

Respondents also take issue with how Coeur Alaska interprets Sections 306(e) and 404. Section 404 does not carve out any exception from 306(e), they argue, and the Court would be violating a general presumption against implied exceptions to create one. Because the CWA has a number of clearly delineated exceptions—including exceptions within Sections 306(e) and 404 for other purposes—nothing in the Act indicates that the exception pursued by the Corps and Coeur Alaska was intended by Congress. In fact, respondents argue, “Sections 306 and 404 reflect a deliberate choice by Congress not to include the exception sought by the Corps.”

In its reply brief, Coeur takes issue with a number of points raised in the respondents’ brief, beginning with their characterization of the discharge, stating that respondents’ description is “blatantly misleading” and that “the tailings will not be a generator of acid or heavy metals.”

Coeur then turns to the issue of 306(e), arguing that, at best, “the assertedly categorical nature of Section 306(e)’s prohibition creates an ambiguity in ‘this very “complex statute.”’” That ambiguity is resolved, however, by the long history of the Corps’ and the EPA’s interpretation of the interplay between the two sections. Even if the CWA required the EPA to regulate discharges of this type, Coeur argues, respondents would still not prevail in the case, because the EPA had concluded that “effluent limitations guidelines and standards, such as those applicable to gold ore mining . . . do not apply to the placement of tailings into the proposed impoundment.”

[edit] Oral Argument Recap

At oral argument on Monday, January 12, both the Justices and counsel struggled through the complex issues raised by the various permitting processes of the Clean Water Act (CWA) and how those permits can be applied in the case of the Kensington gold mine.

The Kensington mine will be built in southeastern Alaska, and will extract gold from ore by grinding up the ore adding chemicals and dumping the mixture into a series of pools, allowing gold-bearing rocks to float to the surface. The remaining slurry is treated, and then—under the proposal under dispute—would be pumped into a nearby lake, which would have been dammed off and turned into a de facto impoundment for the slurry. Because the slurry would change “the bottom elevation” of the lake and thus facially meets the definition of “fill material,” the permit was granted by the Army Corps of Engineers under Section 404 of the CWA. The suit that SEACC brought to block that permit became the case before the Court today.

Oral argument began with Solicitor General Garre contending that agency policy, stretching back thirty years, created a viable framework for assigning these permits—a framework which would allow Coeur to discharge the material in question. Almost immediately, General Garre faced questions from Justice Kennedy and Chief Justice Roberts, who questioned whether a single pipe could “both emit sludge, fill, and effluent.” In this case, General Garre responded, “Fill material trumps effluent.”

The next questions General Garre faced came from Justices Souter and Ginsberg, who expressed concerns over whether the current definition of “fill material” essentially defined away an entire class of pollutants. The Justices also pressed Garre on the nature of the impoundment of the discharges. “If it's proper to do what they're doing here, then the lake in the middle of the Everglades is an impoundment area, or a Great Salt Lake is an impoundment area,” Justice Souter noted.

Former Solicitor General Ted Olson argued next, representing Coeur Alaska and the state. He stressed the exclusivity of the two permitting regimes, and the existence of environmental protections under the Section 404 permit—specifically in the Rule 404(b)(1) guidelines. “It can't have an adverse effect on the water. There cannot be a preferable environmental alternative. It must go through the Marine Fisheries. It cannot contain that toxic material,” he noted.

Thomas Waldo, arguing for SEACC and the other respondents, attempted to turn the discussion to Sections 301 and 306, which limit the discharge of various pollutants, both toxic and non-toxic, into the waters of the United States. It's important to realize here that the Clean Water Act…is not just one big permitting statute. It's not simply 402 and 404 and that determines everything,” he told the court.

Mr. Waldo fielded a series of questions about the effects of the alternative disposal solution, which he admitted would have adverse impacts, such as filling wetlands and creating huge piles of tailings (described earlier by Justice Scalia as an “ash Pentagon”). And once again, Justices raised the question of how the line could be drawn between “fill material” and “effluent” and whether Section 402 and 404 permits could be issued simultaneously. He stressed, however, that no matter how this material was described, it was not eligible for a permit under Section 404.

[edit] Opinion Analysis

[edit] Links and further information

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