The highest court in the land has chosen to hear the issue of whether the Kensington gold mine in Alaska may put their tailings into Lower Slate Lake, effectively filling it in time, or whether they should turn the tailings to paste and put them above-grade just like they do at the Greens Creek Mine not that far away.

In practice, the court will not decide this practical issue. Instead the court will delve into far “higher” matters. Keep in mind the Supreme Court only takes on cases involving constitutional and interpretation-of-law issues. And in this case the issue is the meaning and intent of the 1972 Clean Water Act. Basically the question the court is asked to determine is whether tailings are “fill,” and hence subject to the jurisdiction of the Corps of Engineers, or alternatively “discharge” and hence subject of the jurisdiction ofthe EPA.

Here are some links to reports on the hearings before the U.S. Supreme Court on whether tailings constitute “fill” or “discharge,”and whether the EPA or the Corps of Engineers has the power to issue a permit to place said tailings into a lake, killing the fish, and planning to reclaim the lake after 25 years.

  1. Associated Press: Gold mine wants court to OK dumping waste in lake
  2. USA Today: Our view on the environment: should a mining company be allowed to ruin a lake?
  3. The Canadian Press: Environmentalists warn US Supreme Court not to follow Canada on mine tailings.
  4. Juneau Empire: Supreme Court grill Couer on tailings.

The latter link neatly captures the essence of the case:

Environmental groups sued over how the federal government should regulate the mine’s tailings, or the ground-up waste rock that’s left over after metals are removed. Is it wastewater discharge from the ore-removal process, or is it fill? If it’s discharge, it can’t go in the 23-acre lake. The U.S. Environmental Protection Agency has a rule that prohibits depositing wastewater from the gold milling process into U.S. waters. But if it’s fill, it’s subject to less strict regulation by the U.S. Army Corps of Engineers and will be allowed in the lake, which is how the Corps treated it.Earthjustice attorney Tom Waldo, representing the environmental groups, says tailings are both. They’re fill because of all the solid material, but that doesn’t exempt them from the effluent limits. The federal government and Coeur, supported by the state of Alaska, say it’s fill, period.

A nice fight over the meaning of words, and whether EPA or the Corp prevails.Here is another quote from a report that also captures the essence of this case:

The question is whether Kensington tailings dumped into Lower Slate Lake should be regulated as fill, because tailings would raise the bottom of the lake, or classified as discharge from gold extraction.

Tailings likely fall somewhere in between fill and discharge, but two different permitting standards under the 1972 Clean Water Act govern each. Herein lies the conundrum.

The U.S. Corps of Engineers gave Coeur Alaska Inc. a permit under the “fill” classification. But in 2007, the 9th Circuit Court of Appeals agreed with environmental groups that the U.S. Environmental Protection Agency should have handled the tailings as discharge, which prohibits dumping tailings into the lake.

More interesting are the reports on what the Justices said, or asked duringthe oral presentations. Here are some quotes:

Scalia (a Roman Catholic who believes God gave man dominion over the earth):

Justicesasked about the alternatives [to placing tailings in the lake].

“What is your solution, closing down the mine?” asked Justice Antonin Scalia of Waldo.

“No, no, no,” said Waldo. The environmental groups, as well as EPA, he said, preferred mine tailings be stored in the uplands.

Souter I: (Appointed by Bush senior, he usually votes with the liberal wing of the court)

“It’s inert material,” Olson [lawyer for the mine] said. “It (is) not changing the chemical composition. It is not hurting the water quality.”

Replied Souter: “But it’s going to kill every living creature in the lake, right?”

Souter II

Mining company lawyer Theodore Olson told justices that the waste is more accurately defined as “fill.” And, after a decade or more of mining, he said, the lake could be restocked with no permanent harm to the environment.

“There will be more fish in a bigger lake, and more livable conditions for the fish and the aquatic life after this process is finished,” Olson said.

Justice David Souter called that logic “Orwellian.” He said the mining company, Coeur Alaska Inc., and the U.S. Army Corps of Engineers, which granted a permit for the mine, were “defining away” the problem by calling the wastewater discharge fill.

“When you are destroying the entire living (bodies) of this lake, it seems to me that it’s getting Orwellian to say there are rigorous environmental standards,” Souter said.

Scalia II

Other justices appeared to disagree, noting that an alternative to the dumping would destroy nearby wetlands and create a stack of tailings larger than the Pentagon.

“Isn’t it arguable that the best place for really toxic stuff is at the bottom of a lake so long as it stays there?” asked Justice Antonin Scalia.

Roberts (Chief Justice chosen by Bush to lead the court to the right)

Chief Justice John Roberts asked what, exactly, would be killed. The lake has about 1,000 Dolly Varden char in it, plus assorted invertebrates and plants.

“All the fish, there are a thousand fish in this lake, right?” asked Chief Justice John Roberts. “And those aren’t endangered fish; there are millions of them somewhere else, right?”

Ruth Bader Ginsburg (an old lady of liberal bent who has hung on inthe hopes of a Democratic president who might replace her with a similar liberal old lady)

Under questioning from Justice Ruth Bader Ginsburg, Olson conceded that restoration of the lake was not guaranteed, but he said it was a condition of the permit issued by the Army Corps. The EPA agreed to a regulatory change in the case defining “fill” as “tailings or similar mining-related materials.”

There is more on the comments and questions by the Justices at this link on MineWeb.  Here are some quotes:

Chief Justice John Roberts wondered how a mining pipe could emit sludge, fill and effluent all at the same time. Justice Anton Scalia correctly assumed that fill material trumps effluent when agencies designate slurry as fill material.

Justice David Souter  expressed his dismay that if it's proper for Coeur d'Alene mines "to do what they're doing here [using Lower Slate lake for tailings disposal], then the lake in the middle of the Everglades is an impoundment area, or a Great Salt Lake is an impoundment area."

Garre responded that "at the end of this project, when the lake is going to be reclaimed, the agencies determined that it's going to be environmentally as sound, if not superior, for the habitats in Alaska, fish and wildlife." However, Souter replied, "My problem is that you're treating-the Corps is treating as an impoundment area a whole natural lake as distinct from a settling basin."

The justice complained that "during the period in which the deposits are going to be made, the natural life of this water body is going to be destroyed."

"You are simply, or the Corps is simply, defining what would otherwise be a pollutant, suspended solids discharged into the water, by calling it fill material," he observed.

However, Garre contended that the primary environmental alternative for Kensington's tailings disposal was a dry tailings alternative that would have been problematic. "One, it would have required the destruction of some 100 acres of wetlands; and two, it would have resulted in enormous stacks of tailings, 100 to 200 fett high, thousands of feet wide, that would actually dwarf the Pentagon and be visible from nearby Berners Bay."

There you have it. Now all the arguments are in. The briefs are filed, the oral positions made clear, the justices have asked their questions. Now the secret part begins. We have books by former justices that tell that the nine justices will sit around a table someday and vote on how they intend to decide. The chief justice then picks someone from the majority position to write the decision. From then on, the aides to the justice do most of the hard writing, with drafts circulated to the various justices for editing. Sometimes a justice who is inthe minority elects to write an opposing opinion. Then the opinion is issued and there is no recourse, no appeal. This is the highest court in the land.

The Supreme Court does not like to decide facts—they believe that is the duty of lower courts. The Supreme Court likes to decide law. And in this case there is a clear conflict of law regarding whether the EPA and discharge prevails or whether the Corps of Engineers and fill prevails.

The court could decide very easily that the EPA prevails because that is the higher ethic, i.e., this is an issue of environmental impact. They could decide that the Corps prevails because that is the practical issue: i.e., keeping navigable waterways navigable by precluding too much fill in the waterways.

The court could say that in the case of a conflict between two agencies, they just have to work it out themselves and hence the court could sendthe whole tribe packing back to the negotiating table, or tell Congress to pass a law to sort out the mess. Recall conservative do not like active “legislating” courts and prefer Congress to rule. The ultimate irony inthis case would be to see the court refuse to decide, i.e., to refuse to “legislate,” and to send it back to the politicians to decide.

The court could decide that, on the plain meaning of the words, tailings without chemicals are fill. Or they could decide that on the plain meaning of thewords that tailings constitutes discharge into the waters therefore the EPA rules.

The court is unlikely to get caught up in comparing Alaskan practice to Canadian practice. They are unlikely to delve into the issue of the impact of the ruling on the filling of wetlands, stream, rivers, and other lakes. To do that would truly take them into the arena of law making and the current court, dominated by the conservatives, is loath to undertake a legislative function.

But who knows? The liberal bent may prevail, and we will get a ruling on issues of protection of water bodies, saving fish, building up-land, Pentagon-sized stacks of dry tailings, the foreignness of Canadian practice, and a lesson in mining versus the rest.

I predict, the court will avoid the issue, and send this back, with a little bit of legal and verbal guidance,to the EPA and the Corp to sort out. Andthe miners and environmentalists will sit fuming. Certainly I would not buy shares in the mine just yet.

So all those reports that gloat about the court taking on, or attacking the rights of miners, should tone down. This is basically a fight about the meaning of words. Lawyer’s stuff. Even thoughit mayhave practical implications to the lake and miners. We can argue at length about these issues, but keep in mind the court may not argue about these issues:

  1. Should tailings in the pan-handle of Alaska be put into lakes or the ocean?
  2. Are such tailings not better handled as “paste” or dried tailings and stacked as at Greens Creek?
  3. If the mine cannot afford to turn their tailings to paste, should they be allowed to mine inthe first place?
  4. How do you balance the value of a lake versus lots of jobs, particularly in a failing economy?
  5. If tailings can be put into Slate Lake, why not into Bristol Bay — making Pebble Mine rather cost-effective?
  6. It in the goodness of time, geomorphology will take the paste tailings to the sea, why not put them there in the first place?

Easy questions to ask, but terribly difficult to answer. That is partly why the court will not answer them. The fact that Canada and the United States have basically chosen to go different ways onthis practice, testifies to the rightness of both approaches.

The issues are still political, depending on the perspective of the reporter. Here is one example:

What’s at stake here isn’t just one pretty lake in a remote part of Alaska but bodies of water all over the country. Using lakes, streams or rivers as dumping grounds is exactly what the Clean Water Act was created to prevent, but the Bush administration interpreted the law in ways that undercut its original purpose. The environmental group Earthjustice says that if the court upholds the permit in this case, owners of another big gold and copper mine in Alaska’s Bristol Bay region are poised to dump tailings into the headwaters of salmon streams.

Hence we get the following line-up at the Supreme Court’s doors:

Among those submitting briefs in favor of the mine’s disposal plan: the National Mining Association, the National Association of Home Builders and Alaska trade organizations. Among those submitting briefs against the mine plan: several members of Congress, tribal organizations in the Bristol Bay region, Bristol Bay seafood associations and companies and national environmental groups.

At the expense of repeating the obvious, and as somebody who was involved thirty years ago at Greens Creek and their tailings, I cannot for the life of me understand why they don’t just get on with paste and/or dry tailings. It would have been a lot less costly than this trip to DC. Although I read somewhere that the miners in this case decided that paste tailings is too expensive and lake disposal is just-right. So maybe this is an economics issue and not a legal fight at all.

PS. Here are some more links to the many documents and discussions on this fascinating case.