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Supreme Court May Muddy Water Law

At the very end of the current term of the Supreme Court, the justices announced that they will review a Ninth Circuit decision that forbids Coeur Alaska, a mining company, from dumping mine tailings into Lower Slate Lake north of Juneau, Alaska.

This is not the best news of the week.

The company admits that the tailings will essentially kill all life in the lake but that restoration can be undertaken later. The Army Corps of Engineers, which issued permits for the mine, agreed with Coeur.

Earthjustice, on behalf of the Southeast Alaska Conservation Council and other groups, sued to challenge the permit as a gross violation of the Clean Water Act and an extremely dangerous precedent that could put lakes, streams, and wetlands in jeopardy across the country.

The trial court in Alaska agreed with the Corps and the company, but the Ninth Circuit Court of Appeals agreed with the plaintiffs and reversed the lower court. Our attorneys are hopeful that they can persuade the high court to leave well enough alone, and possibly reaffirm the commonsense proposition that Congress did not intend the Clean Water Act to allow the defiling of the nation's waterways with mine waste.

It takes only four justices to grant review, so it all may boil down to Justice Kennedy as have so many recent decisions, including the one from a year ago that confirmed that the Environmental Protection Agency has the authority to control greenhouse gas emissions from vehicles.

Briefs will be written over the summer and fall; oral argument will probably occur later this year or early next. This sounds like one that will provoke friend-of-the-court briefs from all over.