Justices OK dumping mine waste into Alaskan lake

The Supreme Court gave its approval Monday for waste from a gold mine in Alaska to be drained into a mountain lake, dealing environmentalists their fifth defeat this court term and lobbing another controversial Bush administration policy into President Obama’s lap.

The 6-3 ruling upheld a decision by the George W. Bush administration to label the planned drainage from Alaska’s reopened Kensington mine as “fill” rather than pollution. The Clean Water Act forbids pollution of rivers, lakes and bays, but it also allows the Army Corps of Engineers to move dirt and gravel “fill” into waterways to divert the stream or build a dam.

Environmentalists said that draining the Alaska mine waste into Lower Slate Lake would kill the lake’s fish, and that the ruling opened the door for similarly destructive dumping in waterways across the nation. But they also said the Obama administration could effectively nullify the ruling, and several other cases that conservation groups have lost recently at the high court, by issuing new rules to supersede Bush-era policies.

“It’s been a tough, tough term for the environment” at the Supreme Court, said Tom Waldo, an attorney for the environmental group Earthjustice, who argued the Alaska mine case on behalf of conservation groups. “But these problems are fixable by the current administration, and we hope they’ll take measures to do that.”


The owner of the mine, Coeur d’Alene Mines Corp., said in a news release that it would push to start production at the mine by the second half of 2010. Industry allies hailed the decision. “If you’re going to have mining, you’ve got to put [the waste] somewhere,” said Virginia S. Albrecht, an environmental lawyer at Hunton & Williams in Washington who represents public and private entities regulated by the water act. “What happened here was, the corps said this was the least-damaging, practicable alternative.”

Environmentalists have suffered a series of setbacks at the Supreme Court this term.

In November, the court overturned a judge’s order in Los Angeles that sought to protect whales from the Navy’s high-powered sonar that is used during training exercises off the California coast. The 7-2 decision said the judge’s order unduly interfered in the Navy’s anti-submarine training.

This spring, the high court threw out a challenge to the timber clearing sales in the national forests on the grounds that environmentalists did not have standing to challenge the government in court.

The justices also protected the owners of aging power plants that might be forced to upgrade their facilities to protect wildlife. In a 6-3 ruling, the court agreed with the Bush administration that the Environmental Protection Agency could weigh costs of the upgrades in deciding whether a change was needed.

In another ruling, the court shielded some corporations from paying to clean up a contaminated site.

Monday’s case centered on plans to reopen a gold mine 45 miles north of Juneau that has been closed since 1928. The mine operators plan to employ a technique that over the life of the mine would dump some 4.5 million tons of sandy crushed rock -- mixed with water and laced with aluminum, copper, lead and mercury -- into a small but deep mountain lake.

In allowing those plans to move forward, the court cited ambiguities in the Clean Water Act and an informal Bush administration memo that dictated how to interpret them. “We accord deference to the agencies’ reasonable decision,” Justice Anthony M. Kennedy wrote for a majority that included Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Antonin Scalia, Stephen G. Breyer and Samuel A. Alito Jr.


Environmentalists said the Obama administration could still revoke the mine’s dumping permit or issue new rules that redefine how to classify “fill” under the law. EPA officials’ only response to Monday’s decision was to issue a statement saying they were reviewing the ruling “and its potential implications regarding EPA’s authority to ensure effective environmental protection under the Clean Water Act.”