This case involved a permit issued by the Army Corps of Engineers that allowed a gold mine to discharge wastes into an Alaska lake, killing all the fish and most other aquatic life in the lake. The Corps claimed authority to permit the discharge because the material to be discharged met the definition of “fill material,” and the Corps has authority to issue permits for the discharge of fill. Because the Environmental Protection Agency has an effluent discharge standard that flatly prohibits the specific type of discharge involved in the case, the United States Court of Appeals for the Ninth Circuit held that the Corps lacked authority to permit the discharge. The mining company and the state of Alaska asked the U.S. Supreme Court to review that ruling.
Working as co-counsel with EarthJustice, we filed a brief on behalf of the plaintiffs in the case (the Southeast Alaska Conservation Council, the Sierra Club, and Lynn Canal Conservation), opposing the state’s and mining company’s petitions for certiorari. The brief explained that there is no conflict among the lower courts over the issues in the case, which had never before arisen because the Corps had never before purported to issue a permit for a discharge prohibited by an EPA effluent standard. On behalf of the Corps of Engineers, the Solicitor General of the United States also filed a brief opposing the petitions for certiorari, agreeing with us that there was no conflict among the lower courts and no important reasons for the Supreme Court to address the issue, but disagreeing with us about the correctness of the decision of the Court of Appeals.
The Court nonetheless granted certiorari, and we assisted EarthJustice’s attorneys in writing their brief on the merits defending the correctness of the Ninth Circuit’s holding, and in preparing for oral argument. After oral argument, the Court issued an unusual order requesting supplemental briefing from the parties on additional questions, and we assisted EarthJustice in responding to that order and filing two additional post-argument briefs on an expedited basis.
The question presented was:
Did the Army Corps of Engineers have authority under section 404 of the Clean Water Act to grant a “fill material” permit for an industrial process wastewater discharge that is prohibited by the Environmental Protection Agency’s effluent limitations?
On June 22, 2009, the Supreme Court issued its opinion reversing the Ninth Circuit’s decision. See 129 S.Ct. 2458. The Court held that even though EPA regulations forbade the discharge and the Clean Water Act appears unequivocally to prohibit any discharges in violation of EPA standards, the Act’s provisions allowing the Corps of Engineers to issue permits for discharges of fill material created enough of an ambiguity in the statute to require the Court to defer to the agencies’ view that the EPA standard did not apply to discharges that meet the regulatory definition of “fill.”