The ramifications of the U.S. Supreme Court’s recent decision in Coeur Alaska Inc. v. Southeast Alaska Conservation Council et al could prove widespread, and might even influence future decisions by the Pebble Limited Partnership (PLP) regarding mine waste management.

The 6-3 decision “strains credulity” and has opened a giant “loophole,” says dissenting Justice Ruth Ginsberg, that eventually could see “whole categories of regulated industries” gaining “immunity from a variety of pollution-control standards.”

Essentially, the majority opinion, written by Justice Anthony Kennedy, accepted Coeurs’ argument that a section of the Clean Water Act putting control of permitting certain mine waste called slurry was properly under the authority of the U.S. Corps of Engineers, instead of under the Environmental Protection Agency’s stricter “new source performance standard.” President George W. Bush’s administration had altered rules concerning dumping of such waste into water bodies of the United States, allowing the procedure through Corps permits if the mine waste was defined as “fill material.” To qualify, any fill must be sufficient to raise the level of the bottom of water bodies such as lakes, in this case, Lower Slate Lake near the Kensington mine.

Under this redefinition, the U.S. Corps of Engineers issued a permit to Coeur Alaska allowing the company to deposit the waste into the lake, even though that would kill everything in the lake for at least as long as mining operations continued, a period estimated to be about 10 years. After mining, Coeur Alaska is to attempt to restore the lake. The court’s majority determined that the Corps’ control over permitting was authorized by the regulations and the permit had been issued legally. In other words, the court decided the case based on whether the regulations had been followed properly, not on whether the Bush-era regulatory redefinition ran counter to the spirit and intent of the Clean Water Act.

In so acting, the Supreme Court reversed an appeals court decision that favored the Southeast Alaska Conservation Council’s position that the EPA’s performance standards, which called for zero discharge into water bodies, applied.

Legal challenges to the law, insofar as Kensington is concerned, may be exhausted at this point. The ramifications of the decision, however, might alter planning for the Pebble Mine project. The Partnership has not yet issued a statement about the decision, nor indicated whether the decision would alter their plans for handling mine tailings at Pebble. At this point, plans are to build enormous earthen dams to contain billions of tons of mine waste, a project that will bury Frying Pan Lake. Under the current regulations, however, there would be no legal restrictions on the waters Pebble could propose as receptacles for mine wastes, including area lakes and streams, and even Lake Iliamna, according to an amicus brief filed by a coalition of Alaska Native tribal organizations, fishing and conservation groups. Whether the court ruling would lead the PLP to such a decision remains to be seen.

A major consideration, however, is that the terrain and circumstances of the Kensington site and the Pebble site are radically different. Lower Slate Lake is not equivalent to the Bristol Bay watershed. Environmental damage could be far worse in the watershed of one of the world’s most productive natural fisheries than in a relatively isolated lake. Beyond that, the PLP’s proposed Pebble project is only one of many that could one day impact the much wider mining district surrounding Pebble. Even if the PLP opted for the least environmentally threatening procedures they could find, there is no guarantee, given the regulatory environment, that other mining companies would do the same.

The situations demands a legislative fix. Congress must act to counter the Bush-era regulatory change. While that may or may not affect Kensington, it could help protect other mineral-rich regions, including Pebble, from the devestation that would attend permits allowing dumping of “fill” into lakes, rivers and streams.

Currently, there is a bill before Congress, H.R. 1310, which has 152 co-sponsors, that would amend the Federal Pollution Control Act (aka: The Clean Water Act) to clarify that “fill material” cannot be composed of waste.

The sockeye salmon run in Bristol Bay is overwhelming processing capacity. Laine Welch’s fisheries report in Saturday’s Anchorage Daily News noted the peak of the run was on its way and major processing companies, already facing a glut coming from all areas of the bay, were requiring catch limits, angering many fishermen. Catch limits have been imposed during the past six fishing season. Welch reported that according to a study last year by the Juneau-based McDowell Group, some 37 million fish worth $131 million to harvesters bypassed idled nets in the previous five years.

After netting some 10 million reds last week, the total seasonal catch as of the end of Saturday, July 4, was more than 18 million, according to the July 4 Bristol Bay Inseason Salmon Report on the Alaska Department of Fish website.
On the East Side, some 738,989 fish had been caught in the Ugashik District, and another 8,055,199 were hauled out in the Egegik District.
Over in the Naknek-Kvischak area, the total was 4,247,974.
On the West Side the Nushagak District was reporting a total seasonal catch of 4,978,097, while in the Togiak District, the catch was 75,929.
The totals for Bristol Bay was a daily average catch of 1,737,500, a cumulative catch of 18,096,188, a daily escapement of 513,619 with a cumulative escapement of 4,136,270. The in-river estimate was 425,000 fish, making for a total estimated run of 22,657,458.

Some 1,300 drift gillnetters are working in the bay. Sockeye prices are running between 62-68 cents per pound.

Despite the problems, the healthy Bristol Bay sockeye salmon run reinforces the myriad reasons why this world-class fishery must be protected from the pollution threat posed by the proposed Pebble Mine that the Pebble Limited Partnership plans to build in the Bristol Bay watershed.