At oral argument on Monday, January 12, both the Justices and counsel struggled through the complex issues raised by the various permitting processes of the Clean Water Act (CWA) and how those permits can be applied in the case of the Kensington gold mine.
The Kensington mine will be built in southeastern Alaska, and will extract gold from ore by grinding up the ore adding chemicals and dumping the mixture into a series of pools, allowing gold-bearing rocks to float to the surface. The remaining slurry is treated, and then—under the proposal under dispute—would be pumped into a nearby lake, which would have been dammed off and turned into a de facto impoundment for the slurry. Because the slurry would change “the bottom elevation” of the lake and thus facially meets the definition of “fill material,” the permit was granted by the Army Corps of Engineers under Section 404 of the CWA. The suit that the Southeastern Alaska Conservation Council (SEACC) brought to block that permit became the case before the Court today.
Oral argument began with Solicitor General Garre contending that agency policy, stretching back thirty years, created a viable framework for assigning these permits-a framework which would allow Coeur to discharge the material in question. Almost immediately, General Garre faced questions from Justice Kennedy and Chief Justice Roberts, who questioned whether a single pipe could “both emit sludge, fill, and effluent.” In this case, General Garre responded, “Fill material trumps effluent.”
The next questions General Garre faced came from Justices Souter and Ginsburg, who expressed concerns over whether the current definition of “fill material” essentially defined away an entire class of pollutants. The Justices also pressed Garre on the nature of the impoundment of the discharges. “If it’s proper to do what they’re doing here, then the lake in the middle of the Everglades is an impoundment area, or a Great Salt Lake is an impoundment area,” Justice Souter noted.
Former Solicitor General Ted Olson argued next, representing Coeur Alaska and the state. He stressed the exclusivity of the two permitting regimes, and the existence of environmental protections under the Section 404 permit—specifically in the Rule 404(b)(1) guidelines. “It can’t have an adverse effect on the water. There cannot be a preferable environmental alternative. It must go through the Marine Fisheries. It cannot contain that toxic material,” he noted.
Thomas Waldo, arguing for SEACC and the other respondents, attempted to turn the discussion to Sections 301 and 306, which limit the discharge of various pollutants, both toxic and non-toxic, into the waters of the United States. It’s important to realize here that the Clean Water Act…is not just one big permitting statute. It’s not simply 402 and 404 and that determines everything,” he told the court.
Mr. Waldo fielded a series of questions about the effects of the alternative disposal solution, which he admitted would have adverse impacts, such as filling wetlands and creating huge piles of tailings (described earlier by Justice Scalia as an “ash Pentagon”). And once again, Justices raised the question of how the line could be drawn between “fill material” and “effluent” and whether Section 402 and 404 permits could be issued simultaneously. He stressed, however, that no matter how this material was described, it was not eligible for a permit under Section 404.
Read more about Coeur Alaska v. Southeastern Alaska Conservation Council on SCOTUSWiki.
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