Court asks questions in Kensington case

Although it is somewhat unusual, the U.S. Supreme Court asked the parties and amici (friends of the court) in Coeur Alaska, Inc. v. Southeast Alaska Conservation Council (the Kensington case) to brief two supplemental questions concerning possible applications of the Clean Water Act to the Kensington project in Southeast Alaska. Essentially, the Court asked whether, if effluent from the mine was deemed a pollutant, the underlying Record of Decision by the Forest Service would need to be vacated; and second, whether the applicant could be permitted or required to obtain both a 402 and a 404 permit under the Clean Water Act.

The answers to these two questions were fairly predictable. If the effluent from the project was deemed to be governed by section 402 it would not require the Record of Decision to be changed because its findings were not contingent upon the discharge being deemed fill, and under no circumstances would it be appropriate for Kensington to obtain both a 402 permit and a 404 permit.

To set the record straight, the underlying question posed by this case is whether the slurry material proposed to be deposited into Lower Slate Lake by operations at the Kensington Mine should be regarded as a pollutant or as fill.

If it is a pollutant, it is subject to Section 402 of the Clean Water Act, generally known as the National Pollution Discharge Elimination System.

As the name implies, the purpose of the NPDES is to eliminate the discharge of pollutants into the nation's waterways.

If, on the other hand, the discharge is fill it may be permitted under Section 404 of the Clean Water Act relating to dredge and fill activities.

Section 402 is administered by the U.S. Environmental Protection Agency, and Section 404 is administered by the U.S. Army Corps of Engineers.

It shouldn't take a moment's reflection to appreciate the dilemma posed by these two sections.

If effluent such as silt from the Kensington outfall is governed by the 402 standard, then discharge into Lower Slate Lake would be prohibited. If the discharged material including silt is defined as fill, then issuing the 404 permit would be within the sound discretion of the Army Corps of Engineers. Inert slurry from the mine arguably could qualify as either. Hence the dilemma posed to the Court and, through the request for supplemental briefing, back to the parties.

Historically, the division of jurisdiction between the EPA and the Corps goes back to the earliest days of the Clean Water Act, one of the three Environmental Crown Jewels of the Nixon administration.

The Clean Water Act was intended to be a technology-forcing mandate.

Water pollution was to be eliminated.

The root of the Corps' Clean Water Act jurisdiction lies with its Rivers and Harbors Act mandate to maintain the waterways of the United States open to commerce.

Without the exception to the NPDES represented by section 404, the Corps could not perform.

For decades, the EPA and the Corps have conflicted over where the jurisdictional line lies.

In its inimitable quest for expanded jurisdiction and Congressional dollars, the Corps has extended its reach trying to bring everything it could within its ambit.

Wetlands, for instance, a far stretch from water-borne commerce, are within the purview of the Corps.

The EPA also wants to get its head into the mix as much as possible. To EPA, it matters not whether the discharge is totally inert or even cleaner than the receiving waters. If it qualifies as an effluent, they want to regulate it. Jurisdiction for the sake of jurisdiction is still jurisdiction.

The discharge of inert slurry from the proposed Kensington mine has no more to do with keeping the nation's waterways open for commerce than it has to do with water pollution. Lost in the bushes, like so much of the Ninth Circuit Court of Appeals' spawn, is the fact that the slurry from the Kensington Mine will be harmless to the environment. Ours is a nation of laws even when they are not artfully written and when they are idiotically interpreted and enforced.

There are numerous small lakes all around Southeast Alaska similar to Lower Slate Lake. The disposition of fill into Lower Slate Lake will not place any critical habitat at risk. No endangered species will fall prey to the effects of this inert material. There are no significant impacts on the environment. The outfall downstream of Lower Slate Lake is covered by a 402 permit, so no pollutants will be going out of the lake. On the other hand, there is no commerce taking place on Lower Slate Lake either.

There is one other significant aspect to the questions that have been posed.

The very act of asking the questions so late in the term means that the Court may be unable to deliver its opinion before it rises for summer recess.

If that were to happen, Mr. Justice Souter, who is now scheduled to resign before the Court reconvenes in October, may not participate in the decision.

His successor, of course, would not vote, unless the matter was to be scheduled for a rehearing.

Accordingly, there is a chance that the case could be resolved while the Court is short-handed.

A four-four split would be tantamount to acquiescing in the decision below.

This, in turn, would mean that the ongoing controversy over the limits of Army Corps of Engineers jurisdiction under the Clean Water Act would linger on.