The Supreme Court today blessed a gold mining operation in Alaska that is virtually guaranteed to kill all the wildlife in a nearby lake — although the mining company promises it will later "reclaim" the lake, filling it with organic material to make it an even better wildlife habitat.
The Environmental Protection Agency and the U.S. Army Corps of Engineers had already approved the project, which was being disputed by a coalition of Alaskan environmental groups. In upholding the agencies' approval, the Court upheld its familiar rule that federal agencies are entitled to deference.
The case stemmed out of a proposal by Couer Alaska to reopen the Kensington Gold Mine, near Juneau, which had been closed since 1928. Couer hoped to make the mine profitable by using a technique called "froth flotation" to pull gold-bearing minerals to the top of a tank of roiling water. Couer would then dispose of the crushed rock and water slurry in the Lower Slate Lake, three miles away in the Tongass National Forest. The slurry would almost completely fill the 23-acre lake, currently 51 feet deep at its maximum, transforming it into a 60-acre lake about one foot deep. In the process, all the fish and fauna in the lake would die.
The alternative, Coeur argued, was to place the slurry on nearby wetlands, creating a pile that would rise twice as high and cover three times the area of the Pentagon. This would permanently destroy dozens of acres of wetlands.
Couer needed federal approval before it could proceed with its plan. Two separate provisions of the Clean Water Act (CWA) seemed to give authority over the discharge of slurry to both the U.S. Army Corps of Engineers, which has jurisdiction over the creation of wetlands, and the Environmental Protection Agency, which is responsible for monitoring levels of waste in the water.
The Army Corps approved the gold mining plan, finding it was the "least environmentally damaging" way to dispose of the slurry, and that the damage would only be temporary, since in the future the reclaimed lake will be an even better wildlife habitat. The EPA declined to veto the Corps permit.
The permit was challenged by the Southeast Alaska Conservation Council (SEACC), a coalition of 12 Alaskan environmental groups. According to SEACC, the Army Corps did not have the authority to approve the mining operation because a section of the CWA forbids even tiny solid waste discharges -- and that includes the slurry discharge, 30% of which is solid waste. The company and the federal government argued that another section of the CWA grants the Army Corps blanket authority to permit the discharge of the slurry.
In light of the ambiguities in the CWA, the Court looked to the agencies' interpretation -- and found that the agencies had resolved the problem "in a reasonable and coherent way." An internal EPA memo explained that the prohibition on solid waste discharge applies not to the initial discharge of slurry into the lake, but to any further discharge into downstream waters.
The Army Corps had the sole authority to grant the permit, the Court ruled, because the slurry would fall under the regulations for "fill material," which is solely under the jurisdiction of the Army Corps, not the EPA.
Three justices dissented, arguing that the use of waters as "settling ponds" for harmful mining waste runs "antithetical to the text, structure and purpose of the Clean Water Act."
The case was Coeur Alaska, Inc. v. Southeast Alaska Conservation Council (07-984/07-990).
Lake-Destroying Mining Operation OK, High Court Rules
The Environmental Protection Agency and the U.S. Army Corps of Engineers had already approved the project, which was being disputed by a coalition of Alaskan environmental groups. In upholding the agencies' approval, the Court upheld its familiar rule that federal agencies are entitled to deference.
The case stemmed out of a proposal by Couer Alaska to reopen the Kensington Gold Mine, near Juneau, which had been closed since 1928. Couer hoped to make the mine profitable by using a technique called "froth flotation" to pull gold-bearing minerals to the top of a tank of roiling water. Couer would then dispose of the crushed rock and water slurry in the Lower Slate Lake, three miles away in the Tongass National Forest. The slurry would almost completely fill the 23-acre lake, currently 51 feet deep at its maximum, transforming it into a 60-acre lake about one foot deep. In the process, all the fish and fauna in the lake would die.
The alternative, Coeur argued, was to place the slurry on nearby wetlands, creating a pile that would rise twice as high and cover three times the area of the Pentagon. This would permanently destroy dozens of acres of wetlands.
Couer needed federal approval before it could proceed with its plan. Two separate provisions of the Clean Water Act (CWA) seemed to give authority over the discharge of slurry to both the U.S. Army Corps of Engineers, which has jurisdiction over the creation of wetlands, and the Environmental Protection Agency, which is responsible for monitoring levels of waste in the water.
The Army Corps approved the gold mining plan, finding it was the "least environmentally damaging" way to dispose of the slurry, and that the damage would only be temporary, since in the future the reclaimed lake will be an even better wildlife habitat. The EPA declined to veto the Corps permit.
The permit was challenged by the Southeast Alaska Conservation Council (SEACC), a coalition of 12 Alaskan environmental groups. According to SEACC, the Army Corps did not have the authority to approve the mining operation because a section of the CWA forbids even tiny solid waste discharges -- and that includes the slurry discharge, 30% of which is solid waste. The company and the federal government argued that another section of the CWA grants the Army Corps blanket authority to permit the discharge of the slurry.
In light of the ambiguities in the CWA, the Court looked to the agencies' interpretation -- and found that the agencies had resolved the problem "in a reasonable and coherent way." An internal EPA memo explained that the prohibition on solid waste discharge applies not to the initial discharge of slurry into the lake, but to any further discharge into downstream waters.
The Army Corps had the sole authority to grant the permit, the Court ruled, because the slurry would fall under the regulations for "fill material," which is solely under the jurisdiction of the Army Corps, not the EPA.
Three justices dissented, arguing that the use of waters as "settling ponds" for harmful mining waste runs "antithetical to the text, structure and purpose of the Clean Water Act."
The case was Coeur Alaska, Inc. v. Southeast Alaska Conservation Council (07-984/07-990).