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MINING NEWS: Environmentalists take two hits
By J.P. Tangen Guest Columnist
Two judicial rulings have been handed down recently which bode well for the future of mining activities in Alaska.
The first concerns the Kensington Mine north of Juneau. In June of 2005, after 17 years of trying, the operators obtained all the permits necessary to start mining. The Southeast Alaska Conservation Council then sued to challenge the dredge and fill permit issued by the U.S. Army Corps of Engineers. The so-called “404” permit was suspended temporarily in order to allow the Corps to make some refinements, and early this summer the revised permit was issued.
The Federal District Court reviewed the amended permit and declared that it met the statutory requirements, essentially giving the operators a green light to start mining. The environmental plaintiffs have declared their intention to appeal; however, an appeal is, in my opinion, unlikely to be successful, even in the hands of a liberal panel of judges from the Ninth Circuit Court of Appeals. Agency deference ordered by Supreme Court In 1984, the United States Supreme Court handed down a decision, which has been relied upon extensively by the Ninth Circuit, and which basically held that administrative agencies are entitled to great deference in their interpretation of the laws that Congress has charged them to administer. In the Kensington case, the Corps reached its decision on a technical matter, and when challenged reexamined the decision, made appropriate corrections and rendered its final decision.
The District Court found then that the issuance of the permit conformed to the requirements of law. If the Ninth Circuit were to reverse the District Court, it would have to find that both the agency and the District Court were in error. Plaintiffs also challenge agency jurisdiction A second reason for believing the District Court’s decision will stand, however, is equally noteworthy. The environmental plaintiffs are concerned about the fact that the Kensington Mine will be depositing tailings into Lower Slate Lake. The Corps and the EPA take the position that this is an activity within the jurisdiction of the Corps, because, under the Clean Water Act, the Corps is responsible for dredge and fill permits.
Plaintiffs argue, on the other hand that this is a disposal of a pollutant into the waters of the United States, and, therefore, the EPA should have jurisdiction. This is a novel theory that would change the complexion of the statute.
Ironically, the disposal of tailings into Lower Slate Lake would enhance the habitat of the lake when the land is reclaimed, because at the conclusion of mining operations, the lake will be shallower and have a larger surface area than it has now, meaning that it will play host to more fish. The environmentalists are shooting themselves in the foot with this case and have brought it solely to block mining in Alaska. EPA had allowed Red Dog to exceed discharge limits The second case is equally as frivolous. In this case, brought by six environmentalists in Kivalina, the plaintiffs sought to ding the Red Dog Mine for 1,951 violations of the Clean Water Act. The Federal District Court threw out the vast bulk of the claims as being without merit on their face. The remaining claims alleged that the operators had exceeded the overflow limitations from a water impoundment. EPA had allowed Red Dog to exceed the discharge limits because the agency recognized that compliance was impossible. That, however, did not protect the mine from a third-party challenge by private citizens. Because violations of the same standard had taken place over 618 days, the allegation was that there were 618 separate violations.
Ironically, prior to the construction of the mine, this mineral-laden stream had flowed unimpeded into the Bering Sea; therefore, if anything, the attempts to impound this stream tended to improve the quality of the runoff. While this matter is still pending, it seems pretty clear that, once again, the Federal District Court will be constrained to either go along with the responsible agency’s decision or develop a substantial justification for not doing so.
In both of these cases, there is no obvious public benefit that will result from granting the relief sought. Instead, these are cases that illustrate a degree of anti-mining fanaticism that defies reason.
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