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On June 22, 2009, the Supreme Court announced its decision in Coeur Alaska v. Southeast Alaska Conservation Council. In this case, the Court considered whether under the Clean Water Act, the U.S. Army Corps of Engineers (the Corps) properly issued a permit for the discharge into a lake of slurry from a previously closed gold mine that Coeur Alaska was seeking to revive. In a 6-3 decision delivered by Justice Kennedy, with Justice Scalia concurring in part and concurring in the judgment, the Court ruled that the slurry sought to be discharged into the lake fell well within the definition of "fill material" agreed upon by the Corps and the Environmental Protection Agency (EPA) and hence was subject to the Corps's rather than EPA's permitting authority under the Act. Deferring to the interpretation set out in an internal EPA memorandum describing both agencies' practice, the Court also ruled that in determining whether to issue the permit, the Corps was not required to apply EPA's New Source Performance Standard issued under section 306 of the Act as section 306 does not apply to discharges properly subject to the Corps's exclusive permitting authority.
To discuss the decision, we have the Pacific Legal Foundation’s Director of Litigation, James S. Burling, and a National Litigation Center Attorney at the Pacific Legal Foundation, Brandon M. Middleton.