Q and A on Coeur Alaska v. Southeast Alaska Conservation Council et al. Oral Argument With Amy J. Wildermuth

Can you briefly review how this case got to the Court and what the main issues are?
The dispute began when, during the Bush administration, the U.S. Army Corps of Engineers issued a permit to Coeur Alaska to discharge process wastewater from its new gold mine into a pristine subalpine lake. At bottom, this case is about the proper discharge limits for the mine’s wastewater under the Clean Water Act. Should the mine be required to comply with the new-source performance standards established under § 306 of the Clean Water Act for this type of mine, which would mean that the discharge would not be permitted? Or does the discharge qualify as fill under § 404, which would allow the wastewater to be discharged into the lake without treatment?

How did the oral argument go?
I attended the argument in person and the Justices were, as expected, quite active in their questioning. Justice Ginsburg and Justice Souter appeared to be the most skeptical of the mine’s position; Justice Alito and Justice Scalia appeared to be the most skeptical of the environmental groups’ position.

Solicitor General Garre, who represented the federal government in support of the mine argued first; Justice Souter asked most of the questions. The Justice began by asking General Garre whether the fill definition had created “a flat contradiction” with both the CWA definition of pollutant as well as the zero-discharge standard that the EPA had adopted for gold mines of this sort. He also questioned the propriety of using a natural lake as an impoundment area and expressed concern over the fact that it was certain that all of the fish in the lake would die if the mine discharged as permitted.

Former Solicitor General Ted Olson, representing the gold mine, argued second. Almost every Justice asked a question during Mr. Olson’s argument. Much of Mr. Olson’s time was spent responding to one of Justice Breyer’s familiar hypotheticals. Justice Breyer asked Mr. Olson to explain why it could not be correct that the Corps would be able to permit a company to dump “the worst pollutant ever” (there was a light-hearted exchange as to whether this would be the saturated fat in potato chips or cholesterol) into a lake so long as it was a sufficiently big amount to fill up many feet of the lake.

Tom Waldo, representing the environmental groups in the lawsuit, argued last. Justice Alito, Justice Scalia, and the Chief Justice had several pointed exchanges with Mr. Waldo, during which Mr. Waldo often returned to his central argument point: § 306 of the Clean Water Act, by its own terms, required compliance with any effluent limitation the EPA had promulgated. Because a § 306 effluent limitation applicable to gold mines had been promulgated, Coeur Alaska was compelled to comply with it in this case, regardless of the fill definition. Putting it a different way, Mr. Waldo argued that something should not be permitted under § 404, regardless of its physical makeup, if a § 306 effluent limitation is applicable. Despite Mr. Waldo’s efforts to focus the argument on this issue, the three Justices appeared to remain unconvinced.

Which if any side do you think should have come out feeling good about their hour in Court? In particular, what do you think the Court saw as the strongest argument? Which argument seemed to get the least traction with the Justices?
The Court appeared to be fairly evenly divided. Justice Alito, Justice Scalia, and the Chief Justice seemed most interested in whether the mine discharge looked like what one thinks of as fill material, i.e., sand and gravel. From their questions, they appeared to agree that the discharge here looked like fill material and therefore the decision to grant a Corps permit was within the agencies’ discretion. In addition, they seemed less concerned with the potential adverse environmental consequences of the permit, noting that the alternative disposal plan also had several adverse environmental consequences.

On the other hand, Justice Souter and Justice Ginsburg seemed quite concerned that the mine discharge would kill every living thing in the lake, as well as fill it, and questioned whether such a result could be a proper interpretation of the Clean Water Act. Likewise, Justice Breyer expressed concern that the Corps was the proper agency to issue a permit for the mine’s discharge. Justice Stevens did not ask many questions but seemed concerned by the agencies’ interpretation of the permitting scheme found in a 2004 joint memorandum regarding this particular mine.

Although Justice Kennedy asked several questions, it is unclear where he might line up. Like Justice Alito, Justice Scalia, and the Chief Justice, he asked several questions about whether the mine wastewater should be considered fill, effluent, or both. But during rebuttal, he pressed Mr. Olson on whether the agencies’ interpretation took Mr. Waldo’s § 306 argument into account.

Was there anything that surprised you about the argument?
Two things surprised me. First, the Justices asked several questions about the alternative disposal plan. To be clear, the alternative disposal plan, also referred to as the dry tailings plan, would require the mine to do what many mines do with their wastewater: “dry” it and then place the dry tailings in a pile. This plan would require filling about 100 acres of wetlands, and the tailings pile would eventually be about 150 to 200 feet high and about 1200 to 2000 feet wide on each side.

This line of questioning is a classic red herring. The question before the Court is whether the statute allows the Corps to issue a § 404 permit for the discharge of the mine’s wastewater directly into a pristine lake or, instead, whether the mine must comply with the effluent standard under § 306. The alternative disposal option is irrelevant to that question. For a Court that insists that parties stick to the question presented, this was, to me, a remarkable detour.

Second, I was struck by how difficult the environmental science seemed to be for some Justices. It was, of course, humorous to suggest that saturated fat or cholesterol might be the worst pollutant ever, but one hopes that the Justices know that those substances, while bad for one’s health, are not substances that come up much in environmental science. In addition, at one point Justice Scalia asked “Isn’t it arguable that the best place for . . . really toxic stuff is at the bottom of a lake so long as it stays there . . . ?” In truth, toxic materials leak more easily the closer they are to water, which can then spread contamination for miles. Finally, the Chief Justice’s repeated questions about only killing a thousand fish in the lake left me scratching my head. This is not the same as fishermen catching a thousand fish in a resource where the population can be sustained over time. This is the complete destruction of a lake’s ecosystem.

Any guesses on how the case will be resolved?
As I suggested above, I think this case is a close one. Justice Kennedy, as is often the case, appears to be the deciding vote.

I also believe that the Obama administration will eventually change the interpretation of fill so that the result the gold mine is urging here—a fill permit that allows the discharge of mine wastewater to destroy a pristine lake—will not be possible.

When it comes to mines, however, the problem for environmentalists is bigger than this case. There have been a series of decisions involving the application of the fill rule to mines; all have been victories for mining interests. As a result, several groups have urged the Obama administration to suspend all mining permits in the public interest. In response to these concerns, the administration recently announced that it would review all pending requests for new surface coal mining permits so that it can evaluate the proposals’ impacts on streams and wetlands. But the administration has yet to take any direct action with respect to the permit in this case.

There is also a question of the impact an adverse decision in this case might have, particularly when weighed against the many other issues the EPA has on its plate, including climate change. If the administration does nothing and the Court rules for Coeur Alaska, it is likely that such a ruling would largely defer to the agencies’ interpretation of fill. As such, the EPA and the Corps could simply promulgate a new interpretation of fill to counter the result in the case. In fact, they could just add the language that had been eliminated in the final rule in 2002: Where such pollutants are covered by proposed or final effluent limitations guidelines and standards under section 301, 304, or 306 of the CWA or the discharge is covered by a NPDES permit issued under section 402 of the CWA, the proposed rule would exclude the discharge from the definition of fill. If, in addition, the Corps and the EPA suspended the permits issued to Coeur Alaska pending the revision of the fill rule, the administration would not only prevent mines from doing in the future what Coeur Alaska proposed to do here but also stop Coeur Alaska from doing it now.

That, however, is not the whole story. The real problem with this case is that it could affect, perhaps quite adversely, how the Clean Water Act may be read by future administrations. That is, the Obama administration should also consider the possible impact of receiving a definitive determination from the Supreme Court that would allow the Corps to issue permits to fill lakes if a future administration demanded it. Such a result has the potential to cause significant, irreparable damage in the future. As such, doing nothing now and leaving the case with the Court seems, to me, a big risk.

In short, the administration has a bit of its own March Madness on its hands. It has the ball and the clock is running out quickly. Will it pass and hope for the best? Or will it draw up a play sure to win today and in the future?