News + Events
Supreme Court Decision Resolves Conflict between Corps and EPA Regulation of “Fill”
June 24, 2009
James "Jim" E. Ryan, Jr.
George A. Somerville
On June 22, the United States Supreme Court decided Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, construing the applicability of the Environmental Protection Agency’s (EPA’s) new source performance standards to discharges of “fill” under the Clean Water Act (CWA).
The Court ruled that, because tailings from a froth-floatation gold mine constituted “fill” within the meaning of Section 404 of the Act, the discharge of tailings into navigable waters required a permit from the United States Army Corps of Engineers under CWA § 404, and not an EPA § 402 permit. The Court also ruled that the discharge was not subject to EPA’s new source performance standard promulgated under CWA § 306(b), which expressly forbids mining operations like Coeur Alaska from discharging “process wastewater” except in compliance with the standard. In reaching this decision, the Court extended the deference given to agencies’ interpretation of environmental statutes in their regulations (“Chevron deference”) to an internal EPA memorandum outlining the interplay between the Corps’ and EPA’s respective jurisdiction over the mine.
The Coeur Alaska decision may have limited significance. Unlike Alaska, which did not have an EPA-approved § 402 program when the Corps permit was issued, most states have approved § 402 programs. Unless their state statutes and regulations are similarly restricted, these states can require § 402 permits for fill (pollutant discharge) activities and impose limitations based on § 306 new source performance standards and other standards, where applicable. Also, the EPA has authority to veto a State-issued § 402 permit which does not require compliance with such standards. However, where the state decides not to require such a permit, neither the EPA nor any citizen may have any remedy under federal law. An important holding of Coeur Alaska is that courts may grant Chevron deference not only to an agency’s reasonable interpretation of environmental statutes, as set forth in its formally-promulgated regulations, but also to the agency’s less formal interpretations — including policy statements and intra-agency memoranda.
To read the full opinion, please click here.
For information regarding this decision, please contact John Byrum at (804) 697-1372 or by email at .