If yesterday's decision declining to hold Section 5 of the Voting Rights Act unconstitutional was about as good as you can expect, another decision yesterday was more predictably dismaying. Coeur Alaska v. SAC concerned the question of whether the dumping of toxic industrial "slurry" --"discharge [that] would kill all of the lake’s fish and nearly all of its other aquatic life" -- should be regulated by the EPA or the Army Corps of Engineers. If the slurry was a pollutant -- which you might consider an obvious description of 45 tons of industrial discharge that "would contain concentrations of aluminum, copper, lead, and mercury" -- it would be regulated by the clean Water Act and hence the EPA. Seems like an easy case, right?
I'm afraid not. In a 6-3 decision consisting of the Court's conservatives and all-too-frequent honorary conservative Steven Breyer, the Court held, against the Court of Appeals, that the toxic slurry was "fill material" rather than a "pollutant," and hence the permit issued by the Corps permitting Coeur Alaska to effectively destroy the lake was valid. If that doesn't make a lot of sense to you, you're not the only one: In dissent, Justice Ginsburg argued that "[t]he statute’s text, structure, and purpose all mandate adherence to EPA pollution-control requirements. A discharge covered by a performance standard must be authorized, if at all, by EPA."
Two additional points should be made here. First, this is yet another example of why it's inappropriate to apply pieties about "following the law" to Supreme Court decision-making. As the majority opinion concedes, "The CWA is ambiguous on the question whether §306 applies to discharges of fill material regulated under §404," and whether the decision-making by the executive agencies was "reasonable" is similarly a matter of judgment that can be made either way. That five conservatives and the Chamber of Commerce's favorite Democrat would side with a polluting industry over environmental protection isn't surprising, but the Court was hardly compelled by the law. Second, it should be remembered that it's not just the Court -- which will tend to defer to administrative agencies -- but the Bush administration that's the villain here. Allowing toxic slurry to be classified as "fill material" rather than a "pollutant" is the kind of regulation that the Obama administration can and should overturn.
--Scott Lemieux
