Federal Judiciary

Further briefing due in pollution case

By Akin Gump Supreme Court Practice Group

 The Supreme Court on Monday afternoon told lawyers in a pending case on discharge of dirt-containing slurry into a waterway to file new briefs clarifying two issues on when such dumping is illegal under federal law.  The Court had heard oral argument on Jan. 12 in the consolidated cases of Coeur Alaska v. Southeast Alaska Conservation Council (07-984) and Alaska v. Southeast Alaska Conservation Council (07-990), and presumably was working its way toward a final decision.

With the new order, however, added briefing will not be completed until May 22 — although that apparently will still be in time for a ruling before the current Term ends, expected in late June.  The Court’s briefing order can be downloaded here.

The federal Clean Water Act generally makes it illegal to discharge any pollutant into navigable waters without a permit.  The Act provides two separate permit programs, one under the Army Corps of Engineers, the other under the Environmental Protection Agency.  At issue in the two pending cases is the kind of permit required for dumping “dredged or fill” dirt.  The Corps and EPA agreed on a joint definition.

Its application to a gold mine in Alaska, and whether it has a valid permit from the Corps to dump slurry material from gold mining operations.  The Ninth Circuit Court ruled that the permit was invalid because it violated an EPA performance standard against any such discharge.

In the two questions newly posed on Monday by the Court, lawyers are asked to file simultaneous briefs by May 15 on (1) whether a permit issued by the Corps is valid if a discharge would violate the part of the Clean Water Act that EPA enforces, and (2) whether a discharge covered by EPA dumping limitations is open to a Corps permit and whether such a permit must be obtained.

Simultaneous reply briefs are due May 22.

Full post as published by SCOTUSBLOG on May 04, 2009 (boomark / email).