A toxic alchemy
WHY DOES the United States have a Clean Water Act, if not to protect a pristine Alaskan lake with thriving fish populations from the poisonous waste of a gold mine?
That is the question posed by a case that the US Supreme Court heard Monday. A mining company wants the right to dump millions of gallons of the toxic liquid into Lower Slate Lake in the Tongass National Forest. The slurry is a by-product of chemically treating crushed ore-containing rocks to produce gold flakes.
Coeur-Alaska is seeking legal sanction to destroy the aquatic life in the lake. Its bid has gotten as far as the Supreme Court only because of a decision in 2002 by President Bush's Environmental Protection Agency that gutted the 1972 Clean Water Act. Whatever ruling the court makes in this case, Congress should end any doubt that the 1972 law prohibits this form of pollution.
Bush's 2002 regulation redefined mining waste as fill, which under certain circumstances can be dumped in streams or lakes. It was a favor to companies in Appalachia that blast off mountaintops in search of coal and want a cheap way to get rid of the tailings. In 2005, the Army Corps of Engineers, with the EPA's nod, allowed Coeur-Alaska to apply this loophole to its Kensington mine near Lower Slate Lake. Environmentalists persuaded a federal appeals court to find the plan in violation of the Clean Water Act.
The company's lawyer, former Bush solicitor general Theodore Olson, told the justices that after 10 years or so of mining, the company would restore the lake and re-stock it with fish. "There will be more fish in a bigger lake, and more livable conditions for the fish and the aquatic life after this process is finished," he said.
Justice David Souter said the company and the Army Corps were "defining away" the problem by labeling the lethal discharge as fill. "When you are destroying the entire living (bodies) of the lake," Souter said, "it seems to me that it's getting Orwellian to say there are rigorous environmental standards." Justice Ruth Bader Ginsburg got Olson to concede that restoration of the lake was not guaranteed.
A green light to Coeur-Alaska would set a dangerous precedent. Among the immediate beneficiaries would be the owners of the proposed Pebble gold and copper mine in Alaska, who would have the right to dump their waste into the headwaters of Bristol Bay, the center of North America's most abundant wild salmon fishery.
The court can stop this hollowing out of the Clean Water Act with a ruling against Coeur-Alaska. But whether or not the court goes along with this travesty, Congress should amend the act to leave no doubt that mining wastes are a polluting discharge. 