Coeur Alaska, Inc. v. Southeast Alaska Conservation Council
557 U.S. (2009)
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Rule of Law:
When a discharge qualifies as "fill material" under the governing joint agency regulation, the Army Corps of Engineers has exclusive authority to issue a permit under § 404 of the Clean Water Act, and Environmental Protection Agency new source performance standards promulgated under § 306 of the Act do not apply to that discharge.
Facts:
- Coeur Alaska, Inc. planned to reopen the Kensington Gold Mine in southeast Alaska using a "froth flotation" mineral processing technique.
- This technique produces a waste byproduct called slurry, which is a mixture of crushed rock (tailings) and water.
- Coeur Alaska proposed to dispose of approximately 4.5 million tons of this slurry directly into Lower Slate Lake, a 23-acre navigable water of the United States.
- The proposed discharge would raise the lakebed by 50 feet and expand the lake's surface area to approximately 60 acres.
- The slurry meets the joint regulatory definition of "fill material" established by the Army Corps of Engineers and the EPA, because its discharge has the effect of changing the bottom elevation of a water body.
- The EPA also has a "new source performance standard" that prohibits froth-flotation gold mines from discharging any "process wastewater" into navigable waters, and the slurry qualifies as process wastewater.
Procedural Posture:
- The Army Corps of Engineers issued a § 404 permit to Coeur Alaska, Inc., authorizing it to discharge mining slurry into Lower Slate Lake.
- Southeast Alaska Conservation Council (SEACC) and other environmental groups sued the Corps in the U.S. District Court for the District of Alaska to invalidate the permit.
- The District Court, a trial court, granted summary judgment in favor of the Corps and Coeur Alaska.
- SEACC, as appellant, appealed the decision to the U.S. Court of Appeals for the Ninth Circuit, an intermediate appellate court.
- The Court of Appeals for the Ninth Circuit reversed the District Court's judgment and ordered the permit to be vacated.
- Coeur Alaska, Inc., as petitioner, sought a writ of certiorari from the U.S. Supreme Court, which was granted.
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Issue:
Does the Army Corps of Engineers have authority under § 404 of the Clean Water Act to issue a permit for the discharge of mining slurry that qualifies as "fill material," even when an EPA new source performance standard promulgated under § 306 of the Act prohibits such discharges?
Opinions:
Majority - Justice Kennedy
Yes. Under the Clean Water Act's framework, the Army Corps of Engineers possesses the authority to permit the discharge of slurry defined as "fill material" under § 404, which makes the EPA's conflicting § 306 performance standard inapplicable to that discharge. The CWA divides permitting authority: § 402 grants the EPA authority over pollutants 'except as provided in' § 404, which grants the Corps authority over 'fill material.' Because the agencies' joint regulation defines Coeur Alaska's slurry as 'fill material,' the Corps is the proper permitting agency. The Court defers to the EPA's interpretation, articulated in the Regas Memorandum, which reasonably resolves the statutory ambiguity by stating that EPA effluent limitations and performance standards do not apply to discharges properly regulated by the Corps under § 404. This interpretation harmonizes the statute, preserves a role for both agencies, and is a rational construction of a complex regulatory scheme.
Dissenting - Justice Ginsburg
No. A pollutant discharge expressly prohibited as 'unlawful' by a § 306 EPA performance standard cannot be authorized by a § 404 Corps permit. Section 306(e) of the CWA states without qualification that it is 'unlawful for any owner or operator of any new source to operate such source in violation of any standard of performance.' The majority's decision creates a gaping loophole, allowing regulated industries to evade strict, technology-based pollution-control standards by simply discharging waste with sufficient solid matter to be classified as 'fill.' This outcome is contrary to the CWA's text, structure, and overarching purpose to 'restore and maintain' the integrity of the nation's waters and eliminate their use as waste treatment systems.
Concurring - Justice Breyer
Yes. The agencies reasonably interpreted the statute to create a legal zone where material can be classified as either a pollutant or fill. Given the practical difficulty of applying hundreds of specific EPA performance standards to every substance that might be used as fill, it is reasonable for agencies to have discretion. The EPA reached a sensible compromise here: treating the discharge into the lake as § 404 fill subject to Corps permitting, while treating any subsequent discharge from the lake into downstream waters as a § 402 pollutant subject to the strict EPA standard. This detailed decision is a matter of agency expertise to which courts should defer.
Concurring - Justice Scalia
Yes. The Court correctly defers to the agencies' reasonable interpretation of an ambiguous statute, but it should have explicitly done so under the framework of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. The majority's avoidance of the term 'Chevron deference' in favor of a new, functionally identical standard only adds to the confusion created by United States v. Mead Corp. The predictable administration of complex laws requires that reviewing courts accept reasonable and authoritative agency interpretations of ambiguous statutes, a principle properly known as Chevron deference.
Analysis:
This decision clarifies the jurisdictional boundary between the EPA and the Army Corps of Engineers under the Clean Water Act for discharges that have characteristics of both pollutants and fill material. The ruling gives significant power to the agencies' regulatory definitions, making the classification of a substance as 'fill material' the dispositive factor in determining which permitting regime applies. This creates a pathway for industries producing waste with high solid content to seek permits under the Corps' § 404 public interest review, potentially bypassing the EPA's stricter, technology-based § 402 standards, which could have significant implications for water quality regulation.
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