Coeur Alaska, Inc. v. Southeast Alaska Conservation Council; Coeur Alaska, Inc. v. Southeast Alaska Conservation Council
Issues
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.
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.
Questions as Framed for the Court by the Parties
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.
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.