Coeur Alaska, Inc. v. Southeast Alaska Conservation Council(07-984); Alaska v. Southeast Alaska Conservation Council (07-990)

Oral argument: January 12, 2009

Appealed from: United States Court of Appeals for the Ninth Circuit (May 22, 2007)

CLEAN WATER ACT, EFFLUENT LIMITATIONS, MINING DISCHARGE, AGENCY ACTION, STATUTORY INTERPRETATION

In 2005, the Army Corps of Engineers issued a permit under the federal Clean Water Act ("CWA"), authorizing Coeur Alaska, Inc. to discharge wastewater from the Kensington Gold Mine in navigable waters in Alaska. Environmental groups claimed that this permit violated the CWA because the discharge from the mine did not comply with the Environmental Protection Agency's ("EPA") pollution standards under the CWA. Coeur Alaska, however, argued that the Army Corps of Engineers governed the discharge under a different section of the CWA, and that the issuance of the permit therefore did not violate the CWA. In this case, the Supreme Court's decision will determine whether the permit issued for the Kensington Mine is valid, and potentially resolve the conflicting authority of the EPA and the Army Corps of Engineers under the CWA. In addition, the outcome of this case will impact environmentalists and industry representatives in determining the extent to which certain pollutants can be discharged into U.S. waters.

Question(s) presented

Coeur Alaska, Inc. v. Southeast Alaska Conservation Council (07-984)

The Clean Water Act provides two separate programs for the permitting of discharges into navigable waters of the United States. Under Section 404 of the Act, the Army Corps of Engineers may issue permits for discharges of "fill material," subject to the water-quality restrictions imposed by Section 404(b)(1). Under Section 402 of the Act, the Environmental Protection Agency may issue permits for the discharge of all other pollutants, subject to the effluent limitations prescribed under Sections 301 and 306 of the Act. In 2002, after notice and comment, the EPA and the Corps jointly promulgated a regulation defining the statutory term "discharge of fill material" to include "tailings or similar mining-related materials." Pursuant to its authority under Section 404 to grant permits for the discharge of "fill material," the Corps granted petitioner a permit to deposit certain mine tailings in a lake.

In the decision below, the Ninth Circuit invalidated that permit even though it acknowledged that the proposed discharge "facially meets the current regulatory definition of ‘fill material.'" Upsetting 35 years of established agency practice, the court of appeals held that the Corps may not issue a Section 404 permit for the discharge of fill material if the fill material in question otherwise would be subject to a Section 301 or 306 effluent limitation.

The question presented is whether the Ninth Circuit erred in reallocating the Corps' and EPA's permitting authority under the Act.

Alaska v. Southeast Alaska Conservation Council (07-990)

Whether the Ninth Circuit erred in invalidating the longstanding regulatory interpretation of the U.S. Army Corps of Engineers (the "Corps") and the Environmental Protection Agency ("EPA") that discharges of dredged or fill material are subject to the exclusive permitting authority of the Corps under Section 404 of the Clean Water Act, rather than effluent limitations and standards of performance promulgated under Sections 301 and 306 and applied by EPA pursuant to its separate permitting authority under Section 402.

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Issue(s)

Whether the discharge from Coeur Alaska's Kensington Gold Mine constitutes "fill material," and thus is regulated by § 404 permits issued by the Army Corps of Engineers, or whether the discharge is subject to the Environmental Protection Agency's effluent limitations and is governed under the § 402 permit program.

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Facts

In 2004, Coeur Alaska sought a permit from the Army Corps of Engineers ("Army Corps") to open the Kensington Gold Mine in southeast Alaska. See Southeast Alaska Conservation Council v. Army Corps of Engineers, 486 F. 3d 638, 641 (9th Cir. 2007). Coeur Alaska planned to use a froth-flotation process to process the gold ore from the mine, whereby crushed rock from the mine would be mixed with water and various chemicals to separate out the gold. See id. Upon completion of the process, residual ground rock, called tailings, would remain. See id. "About 40% of the tailings [would] be used as backfill in the mine"; the rest, amounting to approximately 1,140 tons each day, would have to be disposed of. Id. To dispose of the tailings, the waste would be discharged directly into nearby Lower Slate Lake. See id. at 642. The bottom of Lower Slate Lake, which supports native fish and other aquatic life, would be raised fifty feet to its current high water mark and the lake's surface area would be tripled. See id. In addition, Coeur Alaska would be required to take steps to reduce the environmental impact after mining operations. Id. The Forest Service approved the proposal on December 9, 2004, and the Army Corps of Engineers issued a permit to discharge the waste tailings into Lower Slate Lake on June 17, 2005. See id.

In 1972, Congress passed the Clean Water Act ("CWA") "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251. Among other things, the CWA prohibits the discharge of pollutants into navigable waters except as permitted by certain sections of the Act. See 33 U.S.C. § 1311(a). According to §§ 301(e) and 306(e), the EPA must establish national standards, know as effluent limitation guidelines, limiting the discharge of polluted wastewater to the greatest extent possible from both new and existing point sources. See 33 U.S.C. § 1311(e); 33 U.S.C. § 1316(a)(1). To ensure compliance with these national standards, the CWA established two permit programs. The first category, § 402 permits, are issued by the EPA and are required for any discharge that falls under the CWA's effluent limitations required in § 301(e) and § 306(e). See 33 U.S.C. § 1342. The second category consists of § 404 permits, which are issued by the Army Corps and are specifically for the discharge of "dredged" or "fill material." See 33 U.S.C. § 1344. Under this second standard, the Army Corps issued a § 404 permit to Coeur Alaska in 2004 because the Army Corps found Coeur Alaska's discharge to constitute "fill material." See SEACC v. Army Corps of Engineers, 486 F. 3d at 642.

In September 2005, Southeast Alaska Conservation Council, the Sierra Club, and Lynn Canal Conservation filed a lawsuit in the United States District Court for the District of Alaska challenging the Forest Service's decision and the Army Corps's issuance of the permit, claiming that the permit was issued in violation of the CWA. See SEACC v. Army Corps of Engineers, 486 F. 3d at 643. The Corps suspended the permit and reexamined its decision, but subsequently reinstated the permit and issued a revised Record of Decision explaining its reasoning. See id. Coeur Alaska, Goldbelt, Inc., and the State of Alaska intervened as defendants, and the district court granted defendants' motion for summary judgment, reasoning that the permit was properly issued under § 404 of the CWA for the disposal of fill material. See id. The Ninth Circuit Court of Appeals reversed the district court decision, and Coeur Alaska and the State of Alaska filed separate writs of certiorari to the Supreme Court. See id. at 641. The Supreme Court granted the writs on June 27, 2008 and consolidated the two cases into one. See 128 S. Ct. 2995.

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Discussion

Because the Supreme Court's decision in the consolidated cases could greatly affect their interests, environmental groups, mining industries, and Native Americans are watching closely Coeur Alaska v. Southeast Alaska Conservation Council and Alaska v. Southeast Alaska Conservation Council. Respondents Southeast Alaska Conservation Council, Sierra Club, and Lynn Canal Conservation ("SEACC") argue that the Environmental Protection Agency's ("EPA") effluent limitations under §§ 301(e) and 306(e) of the Clean Water Act apply to discharges under § 404 of the Act. See Brief for Respondents, Southeast Alaska Conservation Council, et al. ("SEACC") at 20. Petitioners State of Alaska and Coeur Alaska, however, argue that the Army Corps of Engineers ("Army Corps") properly issued a § 404 permit for the disposal procedures at Kensington Gold Mine because the effluent limitations do not apply to § 404 permits. See Brief for Petitioner, State of Alaska ("Alaska") at 20; Brief for Petitioner, Coeur Alaska, Inc. at 11.

Environmental Concerns versus Industry Concerns

Environmental groups, scientists, and Native Alaskans raise concerns about the possibly permanent impact of allowing the discharge of waste into Lower Slate Lake. See Brief of Amici Curiae American Rivers, et al. ("American Rivers") in Support of Respondent at 2-6; Brief of Amici Curiae David M. Chambers, et al. ("Scientists") in Support of Respondent at 3-4; Brief of Amici Curiae Nondalton Tribal Council, et. al ("Tribal Council") in Support of Respondent at 4-7. Environmental groups point out that the mine's waste has a pH of 10 and will kill almost all aquatic life in the lake, including all fish. See Brief of American Rivers at 5. They contend that the lake may never again be able to support its current ecosystem. See id. In addition, three expert mining and water quality scientists assert that given current technology, it is impossible to "predict with certainty magnitude and term of the impacts on lakes used for these discharges." Brief of Scientists at 3-4. Furthermore, they argue, the nature of the effects of the discharge on the aquatic life could vary, ranging from altering species diversity and denseness to interfering with reproduction and reducing photosynthesis. See id. at 9-10.

Alaskan Natives claim that the impact of a favorable interpretation for Coeur Alaska will affect other mining projects and bodies of water as well. See Brief of Tribal Council at 4. They point specifically to the proposed Pebble Mine in the Bristol Bay region of Alaska, which is rich with salmon, whitefish, trout, and other aquatic species. See id. at 7-9. Native Alaskans argue that in addition to being one of the state's most important commercial fisheries, the Bay has been relied on by Alaskan Natives for thousands of years. See id. at 12-13. Because the Court's decision here will govern the permitting process for Pebble Mine, a decision for SEACC would help to preserve the Bristol Bay ecosystem. See id. at 14-15.

On the other hand, the mining industry in Alaska argues that a ruling for the Southeastern Alaska Conservation Council would have dramatically negative effects on the mining industry in Alaska. See Brief of Amicus Curiae Pacific Legal Foundation, et al. ("PLF") in Support of Petitioner at 15-19; Brief of Amicus Curiae Council of Alaska Producers in Support of Petitioner at 13-24; Brief of Amici Curiae National Mining Association, et al. ("NMA") in Support of Petitioner at 19-22. Because mining is a huge part of Alaska's economy, these organizations contend that the SEACC's favored interpretation of the CWA would impose a great burden on the whole state. See Brief of PLF at 15-19. For example, amici point out, the mining industry in Alaska contributed $4 million to the state's economy in 2007, providing income to state and local governments and Native Americans, as well as 5,500 jobs. See id. at 15-16. In addition, the Resource Development Council for Alaska contends that mining is a "critical part" of the development of Alaskan Natives, as it allows them to reap great economic benefits from their land. See Brief of Amicus Curiae Resource Development Council of Alaska, Inc. in Support of Petitioner at 4.

The mining industry further points out that most mines in Alaska are in extremely remote areas with little access, often in wetland areas, compounding the difficulty of disposing of waste. See Brief of Council of Alaska Producers at 13; Brief of NMA at 19-20. The consequence of upholding the Ninth Circuit decision, mining industry advocates contend, would be to make it prohibitively expensive for mines to dispose of their waste materials. See id. at 21-22.

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Analysis

The outcome of this case depends on how the Supreme Court interprets the scope of § 402 and § 404 of the Clean Water Act ("CWA"). Petitioners Coeur Alaska and the State of Alaska argue that discharges permitted under § 404 are not subject to the EPA's effluent limitations, which are established in § 301(e) and § 306(e). See Brief for Petitioner, State of Alaska ("Alaska") at 6, Brief for Petitioner Coeur Alaska, Inc., ("Coeur Alaska") at 22. In contrast, Respondents Southeast Alaska Conservation Council, Sierra Club, and Lynn Canal Conservation ("SEACC") argue that the Environmental Protection Agency's ("EPA") effluent limitations apply to all applicable discharges, whether they are permitted under § 402 or § 404. See Brief for Respondents at 7.

Plain Meaning of the Statute and Congressional Intent

To resolve a question of statutory interpretation, courts first look to the plain text of the statute to determine whether Congress has addressed the "precise question" before the court. See Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 842-43 (1984). "If a court... ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect." Id. at 843 n.9.

According to SEACC, the plain language of § 306(e) prohibits the Army Corps of Engineers ("Army Corps") from issuing § 404 permits for wastewater discharges that do not comply with the EPA's effluent limitations. See Brief for Respondents at 23-24. The environmentalists argue that this is clear in the text of § 306(e), which makes it "unlawful for any owner or operator of any new source to operate such source in violation of any standard of performance applicable to such source." See 33 U.S.C. § 1316(e). According to the environmentalists, there are no exceptions in § 306(e).  Furthermore, SEACC points out that the EPA has adopted no-discharge performance standards for mills that use the froth-flotation process to process gold and its remains, which are the discharge at issue in this case. See Brief for Respondents at 23-24. SEACC also looks to the language in § 404 as evidence that § 404 must comply with applicable effluent limitations. Specifically, the environmentalists point to § 404(b) which states that, "because other laws may apply to particular discharges ... a discharge complying with the requirement of these Guidelines will not automatically receive a permit." See Brief for Respondents at 27 (citing 40 C.F.R. § 230.10).

The Ninth Circuit agreed with SEACC and held that the plain language of the CWA prohibits the Army Corps from issuing § 404 permits unless the discharges comply with applicable EPA effluent limitations. See Southeast Alaska Conservation Council v. Army Corps of Engineers ("SEACC v. Army Corps"), 486 F.3d 638, 644-66 (9th Cir. 2007). Specifically, the court read § 301 and § 306 as "absolute prohibitions" on the discharge of wastewater that did not comply with applicable performance standards, with no exception for the discharge of "fill material" covered by § 404. Id. at 645 (quoting E.I. de Pont de NeMours & Co. v. Train, 430 U.S. 112, 138 (1977)).

Coeur Alaska and the State of Alaska, in turn, also support their position by using the plain language of the CWA, but reach a different result. Specifically, Coeur Alaska argues that the statute clearly establishes § 402 and § 404 as mutually exclusive permitting programs, with § 402 applying only to those discharges not covered by § 404. See Brief for Petitioner Coeur Alaska at 24, Brief for Petitioner Alaska at 27. According to Coeur Alaska, the Supreme Court has already endorsed this reading of the statute. See Brief for Petitioner Coeur Alaska at 24, citing Rapanos v. United States, 547 U.S. 715, 744 (2006). The State of Alaska points to the fact that while § 402 specifically requires that discharges comply with the effluent limitations in § 301 and § 306, § 404 includes no such requirement. See Brief for Petitioner Alaska at 27. Coeur Alaska argues that, based on proper rules of statutory interpretation, "if Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." Brief for Petitioner Coeur Alaska at 25, quoting S.D. Warren Co. v. Maine Bd. Of Envtl. Prot., 547 U.S. 370, 384 (2006). The Ninth Circuit rejected this "negative inference" argument, arguing that such inferences are "generally disfavored." See SEACC v. Army Corps, 486 F.3d at 646.

Deference to Agency Interpretation

If the Supreme Court determines that the CWA is ambiguous, it must defer to the relevant agency's own reasonable interpretation of the statute. See Brief for Respondents at 46, Brief for Petitioner Alaska at 41, quoting Chevron U.S.A. Inc. v. NRDC, 467 U.S. at 842-43. However, there are different views in this case about exactly how the EPA and the Army Corps have interpreted their responsibilities with respect to the discharge of fill material under § 404. See Brief for Petitioner Coeur Alaska at 25, 33; Brief for Respondents at 47. Central to this dispute is the 2002 Fill-Rule. See Brief for Petitioner Coeur Alaska at 32; Brief for Respondents at 32. This rule, issued through a joint EPA and Army Corps regulation, defines "fill material" as material that, when discharged, changes the bottom elevation of any water of the United States, and generally includes "overburden, slurry, or tailings or similar mining-related materials." See 33 C.F.R. § 323.2; 40 C.F.R. § 232.2. The Ninth Circuit determined that the discharge at issue in this case meets the definition of fill material under the Fill Rule. See SEACC v. Army Corps, 486 F.3d at 644.

According to Coeur Alaska, the Fill-Rule demonstrates that the EPA and Army Corp did not intend the discharge of fill material to be subject to EPA effluent limitations. See Brief for Petitioner Coeur Alaska at 36. Coeur Alaska argues that the EPA has never "sought to regulate fill material under effluent guidelines" and that the EPA and the Army Corps intended for the Fill-Rule to maintain this "existing approach to regulating pollutants under either § 402 or § 404." See id. at 36-37. Furthermore, Coeur Alaska argues that the Fill Rule clarifies the agencies' to regulate fill-material through the Army Corps under § 404. See id. In addition, the State of Alaska argues that the Fill Rule demonstrates the agencies' endorsement of the long-standing practice that the Army Corps has exclusive jurisdiction over the permitting of fill material and that such discharges are not subject to EPA effluent limitations. See Brief for Petitioner Alaska at 8-9.

The Ninth Circuit, however, relied on the Fill Rule to reach the opposite conclusion for SEACC. See SEACC v. Army Corps, 486 F.3d at 649. The court agreed that the Fill Rule maintained the agencies' regulatory practice with respect to fill material, but disagreed with Coeur Alaska about what that practice was. See id. at 651-52. According to the Ninth Circuit, under § 402 the EPA has had a long-standing practice of regulating discharges for which it has established effluent limitations, regardless of whether those discharges were also considered to be fill material. See id. In other words, the court concluded, the agencies intended the Fill-Rule to apply only to "tailings and other mine material that are not subject to effluent limitations," and not to the discharge here. Id. at 653. SEACC interprets the impact of the Fill-Rule in the same way, arguing that the EPA and the Army Corps did not intend to change the EPA's longstanding practice of applying effluent limitations to the kind of discharge at issue in this case. See Brief for Respondents at 58.

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Conclusion

The Supreme Court's decision in this case will further define the scope of the Clean Water Act as it relates to the discharge of fill material. It will also help resolve conflict between the authority of the EPA and the Army Corps with respect to their issuance of permits for pollutant discharge. The Supreme Court's decision in this case will impact both industry and environmental groups in determining the extent to which certain pollutants can be discharged into U.S. waters.

Authors

Prepared by: Katy Hansen and Rebecca Vernon

Edited by: Hana Bae

Additional Sources

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Edited by