The answer will not come for many months, yet the arguments in today’s hearing before the U.S. Supreme Court are worth revisiting as they are significant to mining and environmental protection alike. And to those who revel in dictionary distinctions—like Scrabble players.
The highest court in the land has chosen to hear the issue of whether the Kensington gold mine in Alaska may put their tailings into Lower Slate Lake, effectively filling it in time, or whether they should turn the tailings to paste and put them above-grade just like they do at the Greens Creek Mine not that far away.
In practice, the court will not decide this practical issue. Instead the court will delve into far “higher” matters. Keep in mind the Supreme Court only takes on cases involving constitutional and interpretation-of-law issues. And in this case the issue is the meaning and intent of the 1972 Clean Water Act. Basically the question the court is asked to determine is whether tailings are “fill” or alternatively “discharge” in terms of the act.
So all those reports that gloat about the court taking on, or attacking the rights of miners, should tone down. This is basically a fight about the meaning of words. Lawyer’s stuff. Even though it may have practical implications to the lake and miners. Here is a quote from a report that better captures the essence of this case:
The question is whether Kensington tailings dumped into Lower Slate Lake should be regulated as fill, because tailings would raise the bottom of the lake, or classified as discharge from gold extraction.
Tailings likely fall somewhere in between fill and discharge, but two different permitting standards under the 1972 Clean Water Act govern each. Herein lies the conundrum.
The U.S. Corps of Engineers gave Coeur Alaska Inc. a permit under the “fill” classification. But in 2007, the 9th Circuit Court of Appeals agreed with environmental groups that the U.S. Environmental Protection Agency should have handled the tailings as discharge, which prohibits dumping tailings into the lake.
We can argue at length about these issues, but keep in mind the court may not argue about these issues:
- Should tailings in the pan-handle of Alaska be put into lakes or the ocean?
- Are such tailings not better handled as “paste” or dried tailings and stacked as at Greens Creek?
- If the mine cannot afford to turn their tailings to paste, should they be allowed to mine in the first place?
- How do you balance the value of a lake versus lots of jobs, particularly in a failing economy?
- If tailings can be put into Slate Lake, why not into Bristol Bay — making Pebble Mine rather cost-effective?
- It in the goodness of time, geomorphology will take the paste tailings to the sea, why not put them there in the first place?
Easy questions to ask, but terribly difficult to answer. That is partly why the court will not answer them. All the court will do is tell us the meaning of the words “fill” as compared to “discharge.”
The reports will still get political, depending on the perspective of the reporter. Here is one example:
What’s at stake here isn’t just one pretty lake in a remote part of Alaska but bodies of water all over the country. Using lakes, streams or rivers as dumping grounds is exactly what the Clean Water Act was created to prevent, but the Bush administration interpreted the law in ways that undercut its original purpose. The environmental group Earthjusticesays that if the court upholds the permit in this case, owners of another big gold and copper mine in Alaska’s Bristol Bay region are poised to dump tailings into the headwaters of salmon streams.
Hence we get the following line-up at the Supreme Court’s doors:
Among those submitting briefs in favor of the mine’s disposal plan: the National Mining Association, the National Association of Home Builders and Alaska trade organizations. Among those submitting briefs against the mine plan: several members of Congress, tribal organizations in the Bristol Bay region, Bristol Bay seafood associations and companies and national environmental groups.
At the expense of repeating the obvious, and as somebody who was involved thrity years ago at Greens Creek and their tailings, I cannot for the life of me understand why they don’t just get on with paste and/or dry tailings. it would have been a lot less costly than this trip to DC.
And why are the mining associations disgracing themselves supporting an unviable mine, if the truth is that they cannot afford to “solidify” their tailings. Is this just another gasp of the Palin, McCain machine that prefers to recall the old days of youthful honor as a smoke screen for aged intemperance?
PS. Here is the link to all the arguements in the case – legal pleadings etc.