The Lesser of Two Evils

Did you see the headline? Court OKs dumping gold mine waste in lake – AP, if you missed it, I am not surprised. I didn’t hear a peep about it on TV news nor did I read it in the papers. When I DID find out about I was outraged. “How could they do that?” How could they allow this mining company to dump the waste into a lake when everyone, including the mining company says it will kill every living thing in the lake? Surely, the Justices are not that cold and callous and anti-environment, there HAS to be more to the story than that, doesn’t there?

I searched online for an answer. Let me tell you, I found a lot of outrage, I lot of opinion in the “blog-o-sphere” on both sides but I wanted more answers. So, I did something I have never done before, I downloaded the entire Supreme Court Decision to read it for myself, every word, all 49 pages of it. Now let me be totally transparent with you, I am not a lawyer, but let me summarize.

Basically, Coeur Alaska, Inc. plans to reopen a gold mine that has been closed for over 80 years. Due to changes in technology (froth-flotation) they can now economically extract the gold that prior has proven to be too cost prohibitive to mine. The problem? The remnant of froth-flotation is a rock and water mixture called “slurry”. The company was faced with the problem of what to do with gallons and gallons of the slurry, produced at a rate of 200,000 gallons A DAY. Anecdotally, this slurry also contains copper, aluminum, lead and, my favorite, mercury. So after contemplating this dilemma, they decided, let’s dump it in Lower Slate Lake. The fish in that lake aren’t special, they are just “common fish”, we know it will kill them. In fact, operations of the mine and the dumping of the slurry will raise the bottom of the lake 50 feet. Folks, the lake is only 51 feet deep! Essentially, they are going to fill it in, divert the streams that feed into it, around it, kill every living thing in the lake, then when they are done, (now this is my favorite part), they are going to dredge it all out, clean up the lake, and restore it to better than before. Really? So this company is going to create a man-made lake that is better than the one nature created in the first place? This I gotta see! I have seen a lot of man-made lakes in my life and they all have one thing in common…they look man-made!

Coeur Alaska (coeur is French for heart, by the way, isn’t THAT ironic?), filed for permission to dump the waste with the EPA, no wait a minute, that’s not right, they filed for permission to do this with the Army Corps of Engineers. What? The Corps of Engineers? Well, the Corps granted the permit and plans proceeded. A collection of environmental groups sued under the Clean Water Act stating that the EPA should issue the permit, not the Corps and that the slurry discharge would violate the Clean Water Act itself. The District Court decided in favor of the mine, so the environmental groups appealed. The Ninth Circuit Court overturned the lower court decision, so the mine appealed. Enter, the Supreme Court.

In a 6-3 decision, the Court found that the Corps did have permission to issue the permit under the Clean Water Act. Section 404 gives the authority to the Corps to issue permits for the discharge of “fill material”. The definition of “fill material” includes slurry. (Can you guess which administration amended the definition of “fill material” to include slurry? Let me give you a hint, they were in office after the Clinton Administration and before the Obama Administration). The Court also found that the performance standard of the Clean Water Act does not apply to “fill material”.

I could go on, but you can read it for yourself if you’d like. I must say though, I agree with the dissenting opinion of Justices Ginsberg, Stevens and Souter, while they agree that a permit for fill material could be issued by the Corps, they contend the discharge is a pollutant and therefore covered by the performance standard and must be authorized by the EPA, stating in part that the Clean Water Act reads “The use of any river, lake, stream or ocean as a waste treatment system is unacceptable.”

Are you still with me on this one? Let’s go back and look at the due diligence done by Coeur and by the Corps. As part of the due diligence they are required to look at alternatives. In this case, according to both killing of a lake is the better alternative, the lesser of two evils, if you will, than the option of piling the 4.5 million tons of slurry up on the land surrounding the mine. The Supreme Court decision even speculates that the resulting pile will be larger than the pentagon and would destroy the wetlands surrounding the mine.

So these are the only two choices? Kill a lake, or destroy a wetlands? Is there nothing else that can be done with the slurry. The mine argues anything else would be too expensive, so if we won’t play be their rules, they aren’t going to re-open their mine, and they’ll just take the 200-300 jobs with them and go home. Well, that’s one way to get what you want in this economy. Threaten either the loss of jobs, or the loss of a promise of jobs that don’t even exist in the first place. If you can create jobs it’s ok to rape the environment? If the new technology is only economically viable if you destroy a lake, then I don’t think the new technology is economically viable, do you?

I don’t know about you, but I am still outraged. Write to Coeur Alaska expressing your outrage, write to the Corp of Engineers with your opinion, write to your Senators and Congressmen asking them to eliminate the ambiguity in the Clean Water Act as pointed out in the Court’s decision.

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