2nd UPDATE:US High Court Backs Discharge Permit For Coeur d'Alene Mines
June 22 2009 - 2:26PM
Dow Jones News
The U.S. Supreme Court Monday ruled 6-3 that a unit of Coeur
d'Alene Mines Corp. (CDE) received a valid permit from the U.S.
Army Corps of Engineers to deposit mining waste in an Alaska
lake.
Justice Anthony Kennedy, writing for the majority, said the Army
Corps. of Engineers has the authority to issue the permit over the
Environmental Protection Agency.
"We conclude that the Corps was the appropriate agency to issue
the permit and that the permit is lawful," Kennedy wrote. Though
the court acknowledged that the regulations guiding who has
authority to grant permits are ambiguous, the majority decided the
EPA and the Army Corps had internally divvied up their powers in an
appropriate way.
Central to the case was the question of whether the Army Corps
properly issued a permit allowing a mining company to release waste
by-products into an Alaskan lake. The Ninth Circuit Court of
Appeals invalidated the permit in May 2007, citing sections of the
Clean Water Act in which the EPA broadly prohibits the release of
newer pollutants.
Coeur Alaska, Inc. applied for a permit at Kensington Gold Mine,
located about 45 miles north of Juneau. The permit, issued by the
Army Corps of Engineers in 2005, would allow the company to release
around 4.5 million tons of mine tailings, a by-product of the gold
ore milling process, into nearby Lower Slate Lake over a period of
10 to 15 years.
A trio of environmentalist groups led by the Southeast Alaska
Conservation Council sued the Corps and the Forest Service on the
grounds that the permit violated sections of the Clean Water Act.
Though one section of the act grants the Corps the authority to
issue permits for the discharge of "fill material" - a substance
that raises a body of water's elevation when added - another sets
stricter guidelines, encouraging "where practicable, a standard
permitting no discharge of pollutants."
The Supreme Court ruled Monday that this "performance standard"
set by the EPA does not apply to the mine waste because it is fill
material, a decision Judge Ruth Bader Ginsburg vigorously disputed
in her dissent.
"Would a rational legislature order exacting pollution limits,
yet call all bets off if the pollutant, discharged into a lake,
will raise the water body's elevation?" Ginsburg wrote. "To say the
least, I am persuaded, that is not how Congress intended the Clean
Water Act to operate."
Environmental groups said Monday they would be pressing the
Obama administration and Congress to prevent the permit from being
issued.
The agency interpretations of the Clean Water Act giving the
Army Corps jurisdiction over fill material was written under the
Bush administration, noted Juneau Earthjustice attorney Tom Waldo,
who argued the case before the Supreme Court.
"This is reversible," Waldo said in a conference call following
the court's decision. "It was caused by a Bush administration rule
and it can be fixed by the Obama administration."
The Southeast Alaska Conservation Council will be pushing to
have "fill material" redefined to exclude mine tailings, said its
Sustainability and Clean Water Director Rob Cadmus. A bill called
the Clean Water Protection Act, introduced by U.S. Rep. Frank
Pallone, D-N.J., could enact that change, Cadmus said.
However, Coeur d'Alene Mines spokesman Tony Ebersole said his
company was moving forward on the assumption that the permit would
soon be granted. Construction at the mine is completed except for
the tailings facility, Ebersole said. He expected production to
begin at the mine in the second half of 2010.
The cases are Coeur Alaska Inc. v. Southeast Alaska Conservation
Council, 07-984, and Alaska v. Southeast Alaska Conservation
Council, 07-990. Justices John Paul Stevens, David Souter and Ruth
Bader Ginsburg dissented.
-By Kristina Peterson, Dow Jones Newswires; 202 862-6619;
kristina.peterson@dowjones.com
(Mark H. Anderson contributed to this report.)