« eBay, Inc. v. MercExchange, L.L.C. | Main | DaimlerChrysler Corp. v. Cuno »

Supreme Court Decision Update - S.D. Warren Company vs. Maine Board of Environmental Protection

supreme2.jpgThe second of today’s four Supreme Court cases, S.D. Warren Company v. Main Board of Environmental Protections (PDF of the opinion), deals with the very exciting Clean Water Act and, more specifically, what the term “discharge” means, aside from its viler medical connotations.

And so, here we go: S.D. Warren (a company, not a man with an odd name) asked the Federal Energy Regulatory Commission (FERC) to renew some licenses the company had for running hydroelectric dams it operated to run a paper mill. FERC told Warren that it had to get certain water quality certifications under the Clean Water Act from the Maine Board of Environmental Protection - these certifications would require Warren to maintain a minimum stream flow and to allow passage for certain fish and eels. Warren didn’t feel it needed to apply for those certifications because its dams do not result in “discharge,” which is what triggers the Clean Water Act. Warren applied anyway, under protest, and was denied the certifications.

So Warren appealed, arguing again that the company should not have to apply for the certifications under the Clean Water Act, because dams do not discharge water. Justice Souter, who wrote the unanimous decision, disagreed with Warren’s position, stating that “because a dam raises a potential for a discharge, §401 (of the Clean Water Act) is triggered and state certification is required.” Souter wrote that, though the Clean Water Act does not define “discharge,” its ordinary meaning is clear in the context of water to mean “flowing or issuing out.” Under that definition, “discharge” does indeed apply to dams, and therefore, certification under The Clean Water Act was required.