Supreme Court backs Army Corps, mining company in Alaska case

A divided Supreme Court ruled today that the Army Corps of Engineers, not U.S. EPA, has permitting authority over mining-waste discharges under the Clean Water Act.

"We conclude that the Corps was the appropriate agency to issue the permit and that the permit is lawful," Justice Anthony Kennedy wrote for the 6-3 majority.

The decision -- the final environmental ruling of the Supreme Court's term -- reverses an appeals court ruling, which found the Army Corps had misapplied Section 404 of the Clean Water Act.

The water-pollution law provides two separate programs for permitting discharges into waterways. Under Section 404, the corps issues discharge permits for "fill material," while EPA can issue permits for discharges of all other pollutants subject to limits prescribed in sections 301 and 306.

In 2005, the Army Corps gave permits to mine developer Coeur Alaska Inc. to dump mine tailings -- waste rock left after the extraction of metals -- into Lower Slate Lake. The Southeast Alaska Conservation Club, the Sierra Club and Lynn Canal Conservation Inc. filed a lawsuit, arguing that the permit violated sections 301(a), 301(e) and 306(e).


In August 2006, the U.S. District Court for District of Alaska found for the Army Corps, focusing on whether the agency had misapplied Section 404. The district court noted that environmental groups had challenged the permit on the grounds it did not comply with sections 301(e) and 306(e). It held that if the permit was issued under §404 for the disposal of "fill material," then 301(e) and 306(e) were inapplicable.

But in May 2007, a three-judge panel on the 9th U.S. Circuit Court of Appeals reversed, siding with the environmental groups.

"Even though the discharge in this case facially qualifies for the permitting scheme under §404 of the Clean Water Act because it will change the bottom elevation of Lower Slate Lake, the discharge is nevertheless prohibited by the clearly applicable and specific performance standard," the appeals court held. "The plain language and structure of the Clean Water Act demonstrate that EPA's performance standard governs in this case."

Three justices adopted this line of reasoning in their dissent.

"A discharge of a pollutant, otherwise prohibited by firm statutory command, becomes lawful if it contains sufficient solid matter to raise the bottom of a water body, transformed into a waste disposal facility," wrote Justice Ruth Bader Ginsburg, joined by Justices John Paul Stevens and David Souter.

"Whole categories of regulated industries can thereby gain immunity from a variety of pollution-control standards," she argued, adding: "The loophole would swallow not only standards governing mining activities, but also standards for dozens of other categories of regulated point sources."

The National Mining Association welcomed the decision.

"We are pleased it helps provide employment and greater economic certainty for all those involved in the project," said Carol Raulston of the NMA, which filed a friend-of-the-court brief in the case.

Environmental groups decried the decision, which they asserted could affect waterways across the country.

"If a mining company can turn Lower Slate Lake in Alaska into a lifeless waste dump, other polluters with solids in their wastewater can potentially do the same to any water body in America," Earthjustice President Trip Van Noppen said.

"The good news is that the problem is reversible. It was caused by a Bush administration rule reversing 30 years of successful regulation under the Clean Water Act. We call on President Obama to act immediately to repeal this rule and restore the original intent of the Clean Water Act."

In March, Reps. Frank Pallone (D-N.J.) and Dave Reichert (R-Wash.) introduced legislation to reverse the 2002 rule change that altered the meaning of "fill material" under the Clean Water Act.

The bill would revert to the Clean Water Act's original definition of fill material as "any pollutant which replaces portions of the waters of the United States with dry land or which changes the bottom elevation of a water body for any purpose."

The case is Coeur Alaska Inc. v. Southeast Alaska Conservation Council.

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