(CN) – The U.S. Supreme Court on Monday upheld a Bush-era permit to dump millions of tons of gold-mine tailings into Alaska’s Lower Slate Lake, a move that even the government admits will wipe out the lake’s fish and most other aquatic life.
On a 6-3 vote, the high court determined that the Army Corps of Engineers – and not the Environmental Protection Agency – had the authority to issue the permits. The ruling overturns the 9th Circuit’s decision to vacate the permits on the grounds that they violated the Clean Water Act.
The justices found the permits lawful, despite environmentalists’ objection that the Corps violated EPA performance standards for “froth-flotation” gold mines, or mines that use a chemical process to separate minerals. This standard bars new froth-flotation mills from dumping any wastewater into U.S. waters.
The Corps had allowed Coeur Alaska to dump 210,000 gallons of slurry – including 1,444 tons of mine tailings from the Kensington Gold Mine – into the lake each day. The company plans to reopen the gold mine, which is 45 miles north of Juneau and has been closed since 1928.
Coeur Alaska intends to dump 4.5 million tons of tailings into the lake over the life of the mine. This discharge will raise the bottom of the lake 50 feet, nearly triple its surface area and coat the aquatic life with toxic slurry.
The Corps also allowed Coeur Alaska to build a dam 90 feet high and 500 feet long to prepare for the lake’s expansion. The possibility of restoration is unclear, because the mine tailings could do lasting damage to the lake’s ecosystem.
The Clean Water Act authorizes the Corps to regulate “fill material,” including waste from the gold mine, so long as it considers the environmental consequences. Applying those guidelines, the Corps determined that the lake-dumping plan was the “least environmentally damaging practicable” way to get rid of the waste.
The Corps admitted that the plan would decimate the fish population, but said it was a temporary hazard; Coeur Alaska would help reclaim the lake by covering the tailings with about four inches of “native material.”
The Corps rejected the alternative option of placing the tailings on nearby wetlands, because the resulting pile would be twice high as the Pentagon and cover three times as many acres. This option would do as much – if not more – damage than dumping the slurry into the lake, the Corps concluded.
When the EPA declined to exercise its veto power, environmentalists appealed to the 9th Circuit, which vacated the permits and remanded.
Justice Kennedy reversed, saying federal law clearly gives the Corps the authority to regulate “the discharge of dredged or fill material.” Because the slurry meets the regulation’s definition of fill, the Corps properly issued the permits.
Justice Ginsburg filed a dissenting opinion, joined by Justices Stevens and Souter.
“No part of the statutory scheme, in my view, calls into question the governance of EPA’s performance standard,” Ginsburg wrote.