Northwest Austin Municipal Utility District No. 1 v. Holder (08-322), Coeur Alaska v. Southeast Alaska Conservation Council et al. (07-984) and Nijhawan v. Holder (08-495)

June 24, 2009 Supreme Court Update

Greetings, Court fans!
The end of the Term is approaching, and the decisions are coming fast and furious. To break things up, this Update will cover: Northwest Austin Municipal Utility District No. 1 v. Holder (No. 08-322), one of the most watched cases of the Term, involving a constitutional challenge to the Voting Rights Act; Coeur Alaska v. Southeast Alaska Conservation Council et al. (07-984), addressing the applicability of the Clean Water Act to solid material dumped into an Alaskan lake; and Nijhawan v. Holder (08-495), an immigration case looking at the meaning of an "aggravated felony" under 8 U.S.C. § 1101(a)(43)(M)(i). Let's get right to it.
Many who listened to the oral argument in Northwest Austin Municipal Utility District believed that the Court was poised to strike down § 5 of the Voting Rights Act (VRA), which requires prior federal approval of all changes in state election law and districting in covered States (i.e., states that, in 1972, were using forbidden voter-eligibility tests and had less than 50 voter registration or turnout in that year's presidential election). Section 5 was enacted in 1965 and had a five-year sunset period; Congress most recently renewed it for another 25 years in 2006. Questions during the argument suggested that a number of Justices believed that the VRA's successes may have rendered § 5 unnecessary. So it came as quite a surprise when the Court issued a narrow decision yesterday that did not decide § 5's constitutionality – one way or the other. That may explain the equally surprising unanimity of the Court's ruling (with the partial exception of Justice Thomas).
Chief Justice Roberts authored the Court's opinion, which initially praised the successes of the VRA, noting that in 1965 "the registration of voting-age whites ran roughly 50 percentage points or more ahead of black registration in many covered States," while "[t]oday, the registration gap between white and black voters is in single digits in the covered States; in some of those States, blacks now register and vote at higher rates than whites." But the Court expressed concern about § 5's broad intrusion on covered States' sovereignty. The Court questioned whether successes achieved in voter registration and turnout, and in the election of minority candidates, meant that this intrusion may no longer be justified or whether the distinctions among the States could pass even a rational basis test now that some covered States have better minority voting records than some non-covered States. The Court also recognized, though, that Congress had "amassed a sizeable record in support of its decision [in 2006] to extend the preclearance requirements." This tension in the record led the Court to invoke the ever-handy doctrine of "constitutional avoidance." Apart from its constitutional challenge to § 5's preclearance requirements, the Utility District also had invoked a statutory exemption from those requirements, specifically § 4's "bailout" provision. Under § 4, a State or "political subdivision" may petition a federal court for exemption upon a showing "that for the previous 10 years it has not used any forbidden voting test, has not been subject to any valid objection under § 5, and has not been found liable for other voting rights violations; it must also show that it has engaged in constructive efforts to eliminate intimidation and harassment of voters, and similar measures." The lower court had concluded that the Utility District could not seek a § 4 bailout because it was not a "political division" under the VRA since it did not itself handle voter registration, which was done at the county level. The Court rejected this restrictive interpretation of "political subdivision" and concluded that the Utility District could be eligible for a § 4 bailout, particularly in light of a 1982 amendment to the Act that allowed "piecemeal" bailout within covered States.
Although the Court did not decide the viability of § 5's preclearance requirement, or whether the Utility District here should be granted a § 4 bailout on remand, it may well have breathed some life into the bailout provision. As the Court put it: "The Government's [wrong] interpretation has helped to render the bailout provision all but a nullity. Since 1982, only 17 jurisdictions—out of the more than 12,000 covered political subdivisions—have successfully bailed out of the Act. . . . It is unlikely that Congress intended the provision to have such limited effect." That, coupled with the Court's statement that the Utility District itself had never engaged in racial discrimination in voting, should send a message to the district court on remand. Justice Thomas, however, would have gone a step farther—he alone would have struck down § 5 as no longer constitutional in the present day and age. The lesson he would impart: "Admitting that a prophylactic law as broad as § 5 is no longer constitutionally justified based on current evidence of [lack of] discrimination is not a sign of defeat. It is an acknowledgment of victory."
While the Court's decision in Coeur Alaska v. Southeast Alaska Conservation Council et al. (07-984), may not be garnering the same kind of press attention as the Court's VRA decision, this technical opinion on the complexities of the Clean Water Act (CWA) permitting process may have wide-reaching environmental ramifications. Petitioner Coeur Alaska, a mining company, wanted to re-open an Alaskan gold mine using a froth-flotation process to extract gold from pulverized rock. This process would generate 210,000 gallons per day of waste "slurry"—a rock, water, and chemical mixture—which the company wanted to dump into a nearby lake in the Tongass National Forest. The 4.5 million tons of solid material added to the lake over the lifetime of the mine would settle to the bottom, gradually raising the bottom of the lake by 50 feet, and killing nearly all life in the lake in the process. The Respondents, three environmental groups, opposed this plan.
Since 1982, EPA's performance standards under CWA § 306 had mandated that, in order to obtain a § 402 National Pollution Discharge Elimination System (NPDES) permit from EPA, new froth-flotation mines must achieve zero discharge of pollution. However, because its waste disposal plan would effectively fill in the lake, Coeur Alaska sought a different type of permit—a § 404 permit for the discharge of fill material—from the Army Corps of Engineers (ACOE), which did not have as stringent environmental controls. The first question the Court faced was whether the slurry was "pollution" governed by a § 402 NPDES permit from EPA, or "fill material" governed by a § 404 permit from ACOE (or both). Justice Kennedy, writing for a six member majority, concluded that the slurry was fill material. The Court reasoned that under the CWA and its regulations, ACOE permits govern anything classified as fill material, while EPA permits govern all other pollution. (The Court relied, in part, on the agencies' interpretation of the CWA in their briefs. This case was one of the last ones briefed and argued by the outgoing Bush Administration.) Having concluded that the discharge of slurry was properly governed by an ACOE § 404 "dredge and fill" permit, the Court then turned to the issue of whether the grant of this permit was lawful, in light of EPA's regulations governing new sources of pollution from froth-floatation mines. Faced with an ambiguous statute and ambiguous regulations, the Court turned to the agencies' interpretation of the regulations—particularly a 2004 EPA memo concluding that it did not have authority to impose its performance standards on an ACOE permit. The Court gave this memo deference, despite the environmental groups' arguments that this Bush-era EPA memo was inconsistent with past practices. (In perhaps the only nugget of broader interest arising from this case, Justice Scalia, in a separate concurring opinion, noted his displeasure with the divergent criteria for deference to agency decisions that have arisen after Chevron v. Natural Resources Defense Council.)
Justice Breyer, in a separate concurrence, thought the alternative—literally applying § 402 and § 306 to every discharge—would be too onerous, if only trace amounts of pollutants were found in the material legitimately used as fill. Breyer was comforted by the fact that the agencies and the courts would prevent all waste from being classified as fill, and the fact that the EPA had the power to veto any ACOE permit. Plus, the ultimate discharge from the former lake (now waste lagoon) in this case would be subject to the stringent NPDES permit standards. For Breyer, this was a tough choice—either dump the slurry in the lake, or dump a mountain of solid materials on top of nearby wetlands—which was for the agencies to reasonably decide, not the courts. Justice Ginsburg, joined by Stevens and Souter, dissented, and found no comfort in the majority's approval of the use of a navigable water of the United States as a private company's wastewater treatment system. The dissenters worried that whole categories of regulated industries—beyond mining—would now attempt to circumvent the CWA's performance standards by asserting that their solid-laden waste was "fill" and not "pollution." And the dissent was not nearly as optimistic as Breyer about the ability of the EPA or the courts to prevent evasion of the CWA's performance standards, noting that the EPA had used its veto power over ACOE permits only a dozen times in the last 36 years. In their view, it made no sense that Congress would want the EPA to develop and apply stringent performance standards for new sources of water pollution, but then "call all bets off" if the solids in the pollutant ended up raising the level of the lake into which they were discharged.
Next up, in Nijhawan v. Holder (08-495), Justice Breyer, writing for a unanimous Court, delivered the sole win for the Government in an immigration-related case this Term. Under 8 U.S.C. § 1227(a)(2)(A)(iii), an alien convicted of an "aggravated felony" is subject to deportation. An "aggravated felony" includes "an offense that . . . involves fraud or deceit in which the loss to the . .. victims exceeds $10,000." § 1101(a)(43)(M)(i). Nijhawan was convicted of conspiracy to commit bank, mail and wire fraud as well as money laundering—none of which required, as an element of the crime, a finding that the loss exceeded $10,000. At sentencing, however, Nijhawan stipulated that the loss exceeded $100M, and the sentencing court imposed a sentence of 41 months imprisonment and restitution in the sum of $683M. An immigration judge later determined that Nijhawan was subject to removal from the United States because his crimes constituted "aggravated felonies"—in that they involved "fraud and deceit" and the sentencing stipulation and restitution order demonstrated that the loss exceeded $10,000. On appeal, the Third Circuit rejected Nijhawan's argument that his crimes were not aggravated felonies for purposes of § 1101(a)(43)(M)(i) because the crimes themselves did not require proof of loss exceeding $10,000 as an element. This approach is referred to as the "categorical approach," in which a court considers only the generic crime and not how the individual committed it on the specific occasion. The Third Circuit instead concluded that the $10,000 threshold in subparagraph (M)(i) required an inquiry "into the underlying facts of the case," adopting a "circumstance specific approach." The Court agreed.
In contrast to the Court's categorical approach in interpreting the term "violent felony" under the Armed Career Criminal Act, here, the wording of the immigration statute strongly suggested that a circumstance specific approach was intended by Congress (at least with respect to this provision). For example, subparagraph (M)(ii) refers to an offense "described in section 7201 of title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000." Congress clearly intended this subparagraph to be circumstance specific since § 7201 does not require, as an element, proof of loss exceeding $10,000. Subparagraph (M)(i) was drafted in a nearly identical manner and required a similar interpretation. Therefore, the Court ruled that the $10,000 "monetary threshold applies to the specific circumstances surrounding an offender's commission of a fraud and deceit crime on a specific occasion" not the elements of the particular offense.
The Court has also been busy filling its 2009 docket. I will bring you all of the recent cert grants in the next Update.

From the Appellate Practice Group at Wiggin and Dana
For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400