Court to hear case that interprets Clean Water Act's purview over mine fill
The future of America’s streams, rivers and lakes is on the agenda of U.S. Supreme Court justices this Monday, Jan. 12, when they hear arguments on whether a pristine Alaskan lake may be killed by operators of Kensington gold mine.
Earthjustice attorney Tom Waldo, who has kept the lake alive through a series of successful battles in lower courts, will again take the lead in this final showdown — but the stakes have become much greater.
“The whole reason Congress passed the Clean Water Act was to stop turning our lakes and rivers into industrial waste dumps,” Waldo said. “The Bush Administration selected the Kensington Mine to test the limits of the Clean Water Act. The Army Corps had never issued a permit like this before.”
That the high court even agreed to review the case is troubling because of the damage that may be inflicted on the federal Clean Water Act. A ruling in favor of the dumping scheme would allow reinterpretation of the Act so that mining waste could be dumped into waterways throughout the United States. Should the worst happen, defenders of the country’s waterways would almost certainly have to rely on Congress and the Obama administration for relief.
The case is being closely followed in Alaska because of its immediate implications for Pebble Mine, a massive gold mine proposed for development above the headwaters of Bristol Bay, the world’s richest sockeye salmon fishery.
Mine operators hope the Court will give them the green light to use the same type of lake-dumping process as at Kensington. Moreover, Gov. Sarah Palin sees opportunity for expanded mining development in her state if the Court favors Kensington. In fact, Palin helped defeat a state ballot proposition that would have banned the destruction of Alaskan waters by mining operations.
On his way to the Supreme Court, Waldo won a string of victories on behalf of the Southeast Alaska Conservation Council, Lynn Canal Conservation, and the Sierra Club. After the Ninth Circuit Court of Appeals sided with Waldo, the mine operators appealed to the Supreme Court.
The case originated when the U.S. Army Corps of Engineers granted a permit for the mine to Coeur Alaska. One provision of the permit allows Coeur to deposit its mine tailings into Lower Slate Lake. To get around a 1982 Environmental Protection Agency rule forbidding the dumping of mine wastes into waterways, the Bush administration redefined the mine’s leftovers as “fill.” Previously, fill was usually benign rubble used for such things as jetties.
All agree that the tailings, fill or otherwise, would kill nearly all life in the lake. Coeur and the Corps insist that once the ore has been exhausted they’ll restore the lake to its former glory. Where have we heard that before? Chances are they wouldn’t succeed.