In a decision issued this morning, the U.S. Supreme Court upheld the decision by federal agencies allowing a unit of Coeur d’Alene Mines Corp. to place tailings from its Kensington gold mine near Juneau in a nearby lake.
In doing so, the court sorted out some of the confusion arising from conflicting direction in the authority of each of the agencies as granted by various federal laws. The vote was 6-3, with the majority opinion delivered by Anthony Kennedy. The dissenting opinion was written by Ruth Bader Ginsburg.
The Southeast Alaska Conservation Council and other environmental groups had challenged the decision by the Army Corps of Engineers and the Environmental Protection Agency to allow Coeur Alaska Inc. to use this method of tailings disposal.
The permits were upheld by a federal district court in Alaska upon challenge by the SEACC (joined by the Sierra Club and Lynn Canal Conservation), but the 9th U.S. Circuit Court of Appeals overturned the permits. Coeur and the State of Alaska took the challenge to the U.S. Supreme Court, where the matter was argued in January.
The environmental groups argued that §404 permit issued by the Corps of Engineers was not “in accordance with law,” because Coeur Alaska should have sought a CWA §402 permit from the EPA instead and that the slurry discharge would violate the “new source performance standard” the EPA had promulgated under CWA §306(b), forbidding froth-flotation gold mines to discharge “process wastewater,” which includes solid wastes.
Coeur ready to build a mine
The decision clears the way for completion of the only item remaining to be constructed, the tailings facility, and for production to commence at the mine, providing job growth and economic stimulus to southeast Alaska, the company said.
“We are very pleased with today’s decision by the Supreme Court,” said Dennis E. Wheeler, chairman, president and CEO of Coeur. “It confirms that the thoroughly studied and permitted plan is lawful and the best environmental choice.”
Coeur said it is now targeting production for Kensington, which lies about 45 miles north-northwest of Juneau, in 2H10. The mine’s potential for 125,000 ounces of annual gold production represents a 135% increase for Coeur over our current gold production levels.
It is also expected to provide an estimated 370 direct and indirect jobs, including many for Alaska Native Groups, and begin generating long-term economic benefits to Juneau and southeast Alaska, Wheeler added.
Environmentalists’ take
The SEACC website was quiet about the court’s decision today. Back on Jan. 12, when the court heard arguments about Kensington, the organization called the case “a dangerous assault on America’s rivers, lakes and streams and the federal Clean Water Act and threatens to set a precedent of allowing our lakes and streams to be used as mine tailings dumps.”
SEACC has said it wanted Coeur to use a paste tailings option for Kensington, that it said would do a better job of protecting the environment. But the company said that using Lower Slate Lake would result in the smallest environmental footprint, using less than half the energy required for the dry tailings alternative.
Wheeler said after today’s decision that “we expect that the environmental organizations who had challenged the mine plan in court will now stand behind their commitment to support the immediate economic impact and job creation that Kensington will provide.”
Trip Van Noppen, president of Earthjustice, which had participated in the litigation, was quoted by the Associated Press this morning as saying that “if a mining company can turn Lower Slate Lake in Alaska into a lifeless waste dump, other polluters with solids in their water can potentially do the same to any water body in America.”
The same article quoted Alaska Gov. Sarah Palin calling the decision “great news for Alaska,” adding that it’s “a green light for responsible resource development.”
Justice Kennedy’s opinion
In delivering the opinion of the court, Justice Kennedy said the case required consideration of two questions under the Clean Water Act.
“The first is whether the Act gives authority to the Army Corps of Engineers, or instead to the Environmental Protection Agency, to issue a permit for the discharge of mining waste, called slurry. The Corps of Engineers has issued a permit to petitioner Coeur Alaska Inc., for a discharge of slurry into a lake in southeast Alaska.
“The second question is whether, when the Corps issued that permit, the agency acted in accordance with law.
“We conclude that the Corps was the appropriate agency to issue the permit and that the permit is lawful.”
After a detailed description of the issues involved and the conflict between the two agencies’ regulations, Justice Kennedy says that “rather than address the tension between §§306 and 404, the regulations instead implement the statutory framework without elaboration on this point.
“Each of the two principal regulations … seems to stand on its own without reference to the other.” Nor do additional regulations offer a clean basis for reconciliation, he adds.
Considering practice and policy
To break a deadlock, he turns to “the practice and policy of the two agencies,” which is outlined in a memo called the Regas Memorandum, written in May2004 by Diane Regas, then the director of the EPA’s Office of Wetlands, Oceans and Watersheds.
What the Regas Memorandum says is that the “regulatory regime applicable to discharges under section 402, including effluent limitations guidelines and standards, such as those applicable to gold ore mining … do not apply to the placement of tailings into the proposed impoundment [of Lower Slate Lake].”
The memo does not purport to invalidate the EPA’s performance standard, Kennedy said, since when slurry is discharged into a closed body of water, the EPA’s performance standard retains an important role in regulating the discharge into surrounding waters.
Coeur is required by its permits to ensure than any water coming out of Lower Slate Lake meets CWA standards.
In discussing the Regas Memorandum, Justice Kennedy said the court found “it a sensible and rational construction that reconciles §§306, 402, and 404, and the regulations implementing them,” while the arguments put forth by the environment groups do not.
Justice Breyer’s concurring opinion
In a concurring opintion, Justice Stephen Breyer wrote that “to literally apply these performance standards so as to forbid the use of any of these substances as “fill,” even when, say, they constitute no more than trace elements in dirt, crushed rock, or sand that is clearly being used as “fill” to build a levee or to replace dirt removed from a lake bottom may prove unnecessarily strict, cf. §1362(6) (defining “pollutant” to include “rock”), to the point that such application would undermine the objective of §404, which foresees the use of “dredged or fill material” in certain circumstances and with approval of the relevant agencies.”
While he recognizes the potential problems in going to far away from the CWA standards, he says there are safeguards in place to prevent that from happening.
In this case, Breyer wrote, a middle ground was needed. “Faced with a difficult choice between creating a huge pile of slurry on nearby wetlands or using part of the lake as a storage facility for mine tailings, … the EPA arrived at a compromise,” treating the mine tailings as fill, while considering anything that spilled over into nearby waterways as requiring a §402 permit.
Three justices disagree
Justice Ginsberg, joined by John Paul Stevens and David Souter, disagreed with the majority. “The litigation before the court thus presents a single question,” she wrote: “Is a pollutant discharge prohibited under §306 ofthe [Clean Water] Act eligible for a §404 permit as a discharge of fill material?
“In agreement with the Court of Appeals, I would answer no.
“In sum,” she concluded, “it is neither necessary nor proper to read the statute as allowing mines to bypass EPA’s zero-discharge standard by classifying slurry as “fill material.”
“The use of waters of the United States as “settling ponds” for harmful mining waste, the Court of Appeals correctly held, is antithetical to the text, structure, and purpose of the Clean Water Act.”
“The statute’s text, structure, and pur-pose all mandate adherence to EPA pollution-control requirements.
