High court hears Kensington Mine appeal

On Jan. 12, 2009, the Supreme Court of the United States heard oral arguments in Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, generally referred to as the Kensington case. Like all complex issues, this case defies simple explanation, but there is a kernel issue which can be held up to the light for examination.

Since 1972, when the Clean Water Act was overhauled, there has been a split in the responsibilities for the management of our national waterways. Those amendments granted jurisdiction to the U.S. Environmental Protection Agency over the "discharge" of "pollutants" into the "waters of the United States." The quoted words are important, because they are defined extremely broadly.

There is virtually no water in the United States that does not qualify under some argument. Everything from intermittent floods to permafrost can be deemed to be such waters under some circumstances. A pollutant is just about any conceivable thing other than 100 percent pure water that is introduced into those waters. Discharges can be from pipes or from run-off sources. In brief, the jurisdiction of the EPA is pervasive.

The EPA's enforcement mandate is similarly draconian. It is the responsibility of the agency to preclude virtually all industrial water pollution through regulations and citations. The act also gives hefty authority for so-called public interest groups to oversee the commitment of the agency to pursue its mandate with vigor. This statutory hammer has occasionally resulted in the EPA being forced against its better judgment by the courts to execute the law in ways that do not relate to environmental protection.

In a very large sense, there can be no doubt that the 1972 amendments have made the country a better place. It is within the common memory that prior to the amendments many of our public waterways were literally catch basins for toxic effluent. Even decades later, occasionally, the residue remains a problem.

On the other hand, the amendments also acknowledged the responsibility of the U.S. Army Corps of Engineers to keep America's waterways open for commerce. The Corps has long engaged in dredging rivers and harbors in order to ensure that commercial vessels could serve our ports and riverine communities. As the Corps does its job, it necessarily must "discharge pollutants into the waters of the United States."

One cannot dredge without spilling, one cannot build breakwaters without putting rocks in water, and one cannot re-channel waterways without introducing fill material.

Accordingly, parallel permitting systems have been developed by the respective agencies, with the guidance of the U. S. Supreme Court and other benches in the federal system. The EPA and the Corps wrestled for many years before settling on a relatively bright and shiny line allocating their respective responsibilities. The easy way to distinguish between discharge of pollutants and dredging and filling was to look at the intent of the responsible party.

If the purpose of the discharge was to get rid of waste material by dumping it over the edge with the hope that it would disappear on the theory that the solution to pollution is dilution, then it was pollution for the EPA to regulate and ultimately prohibit. If the purpose, however, was to strategically place inert material in a location where it would be out of the way and does no particular harm to the environment, then it was fill for the Corps to regulate.

The proposed Kensington Mine is an instance where the line has become arguably blurred. The mine tailings to be placed into Lower Slate Lake from the Kensington mine are inert. It clearly is not the intention or the expectation of the mine to introduce the discharge into the waters of the United States for the purpose of having them carried downstream and diluted to the point of inconsequence. Instead, the mine would place sand-fine ground rock into a deep and low-quality remote lake, raise the bottom, and at the conclusion of mining, restock the lake, having created a better habitat for the indigenous fish.

There can be no doubt that if one counts mine tailings as a pollutant, this would be a discharge into a national waterway. In reality, regulating this activity as if it were a toxic industrial waste, however, honors form over substance. Common sense dictates that calling a sandy fill a pollutant is errant.

In arguing this cause before the Supreme Court, two solicitors general, one incumbent and one retired, were on the side of the company and the agencies. They made it clear that the target lake would impound mined material behind a dam and that the outfall would be subject to familiar EPA prescriptions. Accordingly, no effluent will escape downstream.

While it may be several months before the court renders its judgment, given the nature of the questions by the various justices, it is obvious that the decision will split along familiar lines. Whatever the outcome, it will have significant ramifications on the future of mining in Alaska as well as other locations in the West.