Justices uphold permit allowing mining company to dump fill dirt into waterway (June 22, 2009)

A divided Supreme Court ruled today that the Army Corps of Engineers has the authority to issue permits for dumping dredge or fill dirt into waterways, without satisfying all of the pollution restrictions enforced by the Environmental Protection Agency.

In 2005, the U.S. Army Corps of Engineers granted the Idaho-based gold mining company Coeur d’Alene Mines Corp.’s permit to dump 4.5 million tons of rock waste, or mine tailings, into Lower Slate Lake in the Tongass National Forest near Juneau, Alaska.

According to the permit, the underground mine would process gold ore at a rate of about 2,000 tons per day. Over the projected 10-year lifespan of the operation, known as the Kensington Gold Project, the mine would produce an estimated 7.5 million tons of toxic, acidic crushed rock waste known as “tailings.”

Coeur and the government’s preferred waste “storage” site is the 20-acre Lower Slate Lake. Under the Kensington plan, it would be at the receiving end of a constant stream of sludge, which would require the company to install a dam 90 feet tall and 500 feet long just to contain the waste.

Environmental groups, including Southeast Alaska Conservation Council, the Sierra Club, and Lynn Canal Conservation filed suit, arguing that the Corps’ permit violated §301(a), § 301(e), and § 306(e) of the Clean Water Act. Coeur Alaska, Goldbelt, Inc., and the State of Alaska joined the Corps as defendants in the case.

In August 2006, the U.S. District Court for District of Alaska granted the defendants’ request for summary judgment. In its opinion, the district court focused on whether the Corps misapplied § 404 of the Clean Water Act. The district court noted that the environmental groups challenged the granting of the permit on the grounds that it did not comply with § 301(e) and § 306(e). It held that if the permit was issued under § 404 for the disposal of “fill material,” then § 301(e) and § 306(e) were inapplicable.

But in May 2007, a three-judge panel on the U.S. Court of Appeals for the Ninth Circuit reversed, siding with the environmental groups.

“Even though the discharge in this case facially qualifies for the permitting scheme under §404 of the Clean Water Act because it will change the bottom elevation of Lower Slate Lake, the discharge is nevertheless prohibited by the clearly applicable and specific performance standard,” the appeals court held. “The plain language and structure of the Clean Water Act demonstrate that EPA’s performance standard governs in this case.”

The new case on protecting waterways is actually a pair of appeals, consolidated for one hour of oral argument: Coeur Alaska v. Southeast Alaska Conservation Council (07-984) and Alaska v. Southeast Alaska Conservation Council (07-990).

In asking the court not to hear the case, the Department of Justice contended that there is no conflict on the issue in lower courts. But, it added, the court did grant review, it would support the challenge to the Ninth Circuit decision barring the dumping of 4.5 million tons of dirt left over from gold-mining operations into a lake near Juneau, Alaska.

On June 22, 2009, the Supreme Court reversed and remanded the case in a 6-3 decision by Justice Anthony Kennedy.

"We conclude that the Corps was the appropriate agency to issue the permit and that the permit is lawful," Kennedy wrote.

Justice Ruth Bader Ginsburg authored the dissent.

"A discharge of a pollutant, otherwise prohibited by firm statutory command, becomes lawful if it contains sufficient solid matter to raise the bottom of a water body, transformed into a waste disposal facility," wrote Ginsburg, joined by Justices John Paul Stevens and David Souter.

"Whole categories of regulated industries can thereby gain immunity from a variety of pollution-control standards," she argued, adding: "The loophole would swallow not only standards governing mining activities, but also standards for dozens of other categories of regulated point sources."

Question presented:
Whether the U.S. Army Corps of Engineers may not issue a permit for discharge of fill material otherwise subject to effluent limitations under Sections 301 or 306 of the Clean Water Act.