Coeur Alaska v. S.E. Alaska Conservation Council - Oral Argument - January 12, 2009

Coeur Alaska v. S.E. Alaska Conservation Council

Media for Coeur Alaska v. S.E. Alaska Conservation Council

Audio Transcription for Opinion Announcement - June 22, 2009 in Coeur Alaska v. S.E. Alaska Conservation Council

Audio Transcription for Oral Argument - January 12, 2009 in Coeur Alaska v. S.E. Alaska Conservation Council

John G. Roberts, Jr.:

We'll hear argument first this morning in Case 07-984, Coeur Alaska v. The Southeast Alaska Conservation Council, and Case 07-990, Alaska v. The Southeast Alaska Conservation Council.

General Garre.

Gregory G. Garre:

Thank you, Mr. Chief Justice, and may it please the Court: The expert agencies charged by Congress with implementing the Clean Water Act have concluded that the discharge of fill material, like the mine tailings at issue in this case, should be permitted by the Army Corps of Engineers under section 404 of the Act, and are not -- are not subject to the effluent guidelines applicable to permits issued by the EPA under section 402 of the Act.

That interpretation is grounded on more than 3 decades of agency pronouncements and reflects the collective judgment and expertise of the Army Corps of Engineers and the EPA in administering the Act.

Anthony M. Kennedy:

If the discharge comes from a single pipe, is it always one or the other, or can it ever be both fill and--

Gregory G. Garre:

Justice Kennedy, it's always one or the other.

The Clean Water Act establishes two distinct permitting regimes.

And I think this is actually something where the parties agree.

Either it's going to be permitted under section 402 of the Act, which covers pollutants generally but not the discharge of dredged material, or fill material, which is covered by section 404 of the Act.

John G. Roberts, Jr.:

That's a legal answer to Justice Kennedy's question.

What is the physical answer?

Can a pipe both emit sludge, fill, and effluent?

Gregory G. Garre:

As a practical matter, for example, if you take the -- the slurry in this case, which is 55 percent solid by volume, there is going to be liquid coming out of that pipe with the slurry, but under -- under the definition that the agencies administer of "fill material", this is fill material under that definition.

Antonin Scalia:

Fill material trumps effluent, in other words?

Gregory G. Garre:

Fill material trumps effluent.

That's--

David H. Souter:

But it does -- here's the -- here's the problem that I'm -- I'm having and I think others may have.

We start, number one, with a definition, as I understand it, of "pollutant" that includes suspended solids.

Number two, there is an existing regulation to the effect that wastewater from this particular method of -- of extracting gold shall -- shall simply not be released, shall not be put into -- into water bodies.

And then the two agencies come along, and in effect they say, by regulation, if the suspended solid in effect comes out of a mine, or if the wastewater has got suspended solid in it, we are going to call it fill and leave it entirely to the Army engineers under 404, subject to an EPA veto.

And on the face of it, it sounds as though they are simply, number one, defining one -- one variant of pollution out of the EPA's jurisdiction and, number two, with respect to the wastewater, in effect coming up with a contradictory determination about what should be done with it.

And it sounds as though, under the Administrative Procedure Act, that with the statutory and the regulatory regime on the one hand and this joint regulation on the other, you've simply got a flat contradiction, and queried whether that can be anything other than arbitrary and capricious under the APA.

Will you address that for--

Gregory G. Garre:

--Sure, Justice Souter.

I mean, first of all, I think those concerns really go to the definition of SEACC has squarely challenged that definition in this case.

And I would point you to two parts of the record to--

David H. Souter:

--Well, let's -- let's assume -- and I -- I don't mean to cut you off there, but before you're done -- I am at least raising it because I find it very difficult to get a handle on this case without dealing with that problem.

So you may say, well, they didn't raise it well enough, but I -- I still want you to deal with it on the merits.

Gregory G. Garre:

--Sure.

And let me just point to the two parts of the record: The JA at 541 note 12, where the Ninth Circuit acknowledged they didn't challenge it; and then also I'd point you to their complaint, where the complaint is directed to the permits and does not seek a determination that the fill rule definition is arbitrary and capricious.