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Justice Scalia Needs to Find Nemo

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Where you stand often determines where you sit. If that maxim holds true, the Supreme Court is likely to divide sharply along ideological lines in the big environmental case argued yesterday, Coeur Alaska v. Southeast Alaska Conservation Council.

Think of the froth-flotation gold mine operation at issue in the case as the mirror image of mountain-top removal coal mining, which has devastated wide swaths of West Virginia in recent years. Instead of blowing up a mountain and leveling a valley, modern gold mining operations typically take flat land and produce an enormous hole in the ground next to a mountain of contaminated mine tailings.

But environmental regulations make above ground mine-tailing piles expensive, so Coeur Alaska proposed a cheaper alternative for their Kensington Mine: simply pipe the tailings into a nearby lake. The company wants to daily pump 210,000 gallons of slurry -- a suspension of solids in water consisting of chemical additives, heavy metals such as aluminum, copper, lead and mercury, and crushed rock debris -- into the Lower Slate Lake in the Tongass National Forest. This proposed slurry disposal would triple the size of the lake, raise the level of the water by over 50 feet, and kill all aquatic life in the lake at least as long as the mine was in operation.

The problem with this "solution" is that it was flatly prohibited by EPA regulations, put in place in 1982, that prevent discharges of wastewater from new froth-flotation gold processing operations into navigable water. But the Bush administration engineered an end-run around this prohibition. Instead of being labeled "wastewater," subject to EPA's prohibition, the mine's slurry was to be relabeled "fill" (because it raised the lake's water level) and thus subject only to the Army Corps of Engineer's less-stringent regulations for fill material. The Corps granted a permit for the Kensington Mine, EPA refused to veto the permit, and environmental groups had to take the company and the EPA to court.

The justices appeared to struggle yesterday in sorting through the complicated legal issues in the case, which involve a number of sections of the Clean Water Act and 30 years worth of related regulations by the EPA and the Army Corps of Engineers. But the consequences of the Court's ruling are simply stated: if this end run is permitted, pristine lakes around Alaska and elsewhere in the nation could be dammed and filled with contaminated wastewater. The justices' reactions to these undeniable consequences revealed the stark differences in their views on environmental protection.

Justice Souter started the argument by noting the Orwellian nature of the government's claim that its environmental regulations were "rigorous": "You keep saying they are rigorous. My understanding is -- and I didn't think it was seriously disputed here -- is that during the period in which the deposits are going to be made, the natural life of this water body is going to be destroyed."

"That's right," counsel for the government responded, clarifying that this total destruction of life was ok because it was only temporary. Chief Justice Roberts and Justice Alito, picked up on this argument, aggressively questioning the lawyer for Southeast Alaska Conservation Council about how many fish would be destroyed, whether these fish were endangered species, and whether there was anything besides fish in the lake. Justice Scalia put this point plainly: "I mean, isn't it arguable that the best place for -- for really toxic stuff is at the bottom of a lake so long as it stays there . . ."

For Justice Souter, the case was about whether the agencies charged with protecting navigable waters would be permitted to allow mining companies across the country to destroy all aquatic life in these waters. For Justice Scalia, the question was "what's the big deal?" In theory, these views about the consequences of a ruling should not influence a justice's application of the law. But in practice in environmental cases, which involve complex and sometimes ambiguous statutes, where a justice stands on the policy implications of a ruling often seems to dictate where the justice sits on the law. We'll see later this year when the Court issues its opinion. In the meantime, maybe someone could slip Justice Scalia a DVD of Finding Nemo.

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