Supreme Court Decimates Clean Water Act

In a bow to the mining industry, the Supreme Court on Monday ruled that the Clean Water Act permits an Alaskan gold mining company to dump tons of waste into a 23-acre lake nearby — never mind that the dumping will kill off every bit of aquatic life there.

The ruling extends from a 2002 rule change, with which the Bush administration redefined mining debris — even toxic mining debris — as “fill” rather than “waste.” That seemingly subtle change had the wide-sweeping consequence of shifting mine-waste disposal decisions from the Environmental Protection Agency to the U.S. Army Corps of Engineers — a switch that also helped fuel the popularity of mountaintop mining operations in the Appalachian states in the last decade.

The Obama administration has taken steps in recent weeks to reassert the powers of the EPA to protect waterways surrounding mountaintop sites, but those changes, up to now, are limited to Appalachian projects. Alaskan mines just aren’t subject to the new scrutiny.

That spells bad news for Tongass National Forest’s Lower Slate Lake. In 2005, the Corps had approved permits for the Alaskan gold mine company, Coeur Alaska Inc., to dump 210,00 gallons of waste per day into Lower Slate — waste containing aluminum, copper, lead, and mercury. It was those permits that the Supreme Court upheld 6-3 Monday, overturning an earlier ruling by the 9th U.S. Circuit Court of Appeals.

The reasoning from the court’s majority goes something like this: Because (1) the dumping is expected to raise the bottom of the lake bed by 50 feet over the lifespan of the mine; (2) waste that raises the bottom elevation of waterways is defined as “fill;” and (3) the Corps has sole jurisdiction to issue permits to dump “fill” — then by the transitive properties of jurisprudence the 2005 permits are legitimate, and the EPA is powerless to step in despite the undisputed environmental damage set to be visited upon the lake.

“We conclude that the Corps was the appropriate agency to issue the permit and that the permit is lawful,” Justice Anthony Kennedy wrote for the majority.

The dissenters, however, had another take. Joined by Justices John Paul Stevens and David Souter, Ruth Bader Ginsburg wrote that the majority’s ruling “strains credulity.”

A discharge of a pollutant, otherwise prohibited by firm statutory command, becomes lawful if it contains sufficient solid matter to raise the bottom of transformed into a waste disposal facility. Whole categories of regulated industries can thereby gain immunity from a variety of pollution-control standards. The loophole would swallow not only standards governing mining activities … but also standards for dozens of other categories of regulated point sources.

The court’s ruling clearly defies the intention of the Clean Water Act, Ginsburg added, which states that “the use of any river, lake, stream or ocean as a waste treatment system, is unacceptable.”

Environmentalists also blasted the ruling, warning that it could set a dangerous precedent. “If a mining company can turn Lower Slate Lake in Alaska into a lifeless waste dump,” Trip Van Noppen, president of Earthjustice, said in a statement, “other polluters with solids in their wastewater can potentially do the same to any water body in America.”

At least one voice, however, is joining the mining industry to cheer the decision. Pointing to the 370 local jobs the mine will sustain, Alaska Gov. Sarah Palin (R) said yesterday that the ruling is “great news for Alaska.”

Today’s ruling is a green light for responsible resource development … We truly appreciate Coeur’s tenacity in pursuing the project and its dedication to hiring Alaskans to work at the mine.

The next move lies with the White House.

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