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Earthjustice Defends Nation's Waterways at Supreme Court


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View Raviya Ismail's blog posts
12 January 2009, 2:37 PM
Earthjustice attorney Tom Waldo argues to protect Lower Slate Lake

Earthjustice press secretary Raviya Ismail was at today’s (Jan. 12) U.S. Supreme Court hearing on whether the Clean Water Act allows Coeur Alaska’s Kensington Mine to fill Lower Slate Lake in Alaska with mining waste – killing all aquatic life. Earthjustice attorney Tom Waldo argued to protect the lake. The high court decision, expected by June, could determine whether waterways throughout the nation may be likewise filled and killed. Here is Raviya’s report:

About 150 people showed up at today’s hearing. The justices seemed split over whether to save the lake. A key issue in the case is the definition of “fill” material under the Clean Water Act.

During his argument, Earthjustice attorney Tom Waldo stressed that, unlike ordinary fill material, the mining waste is in the form of industrial wastewater slurry full of chemicals that will destroy Lower Slate Lake. Therefore a permit allowing the deposit of fill into the lake cannot be used and violates the Clean Water Act.

Justice Ruth Ginsberg questioned the practice of calling material used to reclaim land as fill and dumping that material into water sources.

"Can any water of the United States be a settling pond?" she inquired. "Is it just up to the Corps of Engineers?"

Justice Stephen Breyer said filling a water body with a substance and calling it non-toxic just because it remains there is "counterintuitive."

Justice Scalia questioned Waldo on the alternative - discharging the waste on dry land.

Waldo agreed that there would be adverse impacts with the alternative, "but not as bad as filling a lake and killing all the fish and aquatic wildlife."

Mining company lawyer Theodore Olson argued that the mining deposits were “not hurting the water quality of the lake,” to which Justice David Souter replied: “But it's going to kill every living creature in the lake, right?”

Olson admitted, “Yes, it is, Justice Souter.”

When Olson insisted that the lake would ultimately be better off with the fill in it, Justice Souter said such logic was “Orwellian.”

Go to the Earthjustice website for more information about the case.

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