Talking Back: Doug Kendall answers your questions about the Supreme Court ruling against The Clean Water Act

It went down like this: last week Pjacobs51 posted an article that was written on Treehugger about the Supreme Court decision that will allow Coeur Alaska Inc to dump coal mining waste, essentially ruling that the Clean Water Act shouldn't prevent mining companies from dumping their toxic waste into lakes, even with the knowledge that doing so will exterminate all life within. You  responded with awe, questions, shock, dismay, and a LOT of what WTF?????

Well, given the shocking ruling, we decided to get a bit more info on the matter, and took your questions to Doug Kendall, President of the Constitutional Accountability Center.

Deliatheartist asked: The article in question states this idea is, "less environmentally damaging than other options." What ARE the other options?


Doug Kendall:  In this instance, the Army Corps of Engineers (which issued Coeur Alaska the permit to dump the waste) compared dumping the gold mine “slurry” into the lake to dumping it onto nearby wetlands, and determined that the latter would create permanent loss of dozens of acres of wetlands.  This was deemed less preferable than dumping the slurry into the lake, which, the Corps determined, could be rehabilitated later.  Environmental advocates involved in this case, however, argued that the discharge should have been prohibited outright, because it would have violated an EPA ban on discharging “process wastewater” into navigable waterways such as the lake.


pjacobs51 asked: The defense of this is because it's "the easiest way?"Well it would be easier for me to park in a handicap zone, or take a leak where ever I wanted, or to rob a bank because it's easier than working. Does that make anything legal because it's easier? Is the Supreme Court so supreme it can work it's way around a law called "The Clean Water Act?" Is this blind justice, or Corporate Justice?


Doug Kendall: Please don’t do any of those things – they are bad things to do and given that you don’t have corporate deep pockets, you probably will get caught.   This is a case where a wealthy and powerful corporation used a slight ambiguity in the law to get around what was clearly intended to be an absolute prohibition by EPA against the discharge of mine slurry into any water body.  Here’s the rub.  The Clean Water Act has two different permitting programs: one for pollutants (the NPDES program administered by EPA under Sections 306 and 402 of the Act) one for “fill material” (the dredge and fill program administered by the Army Corps of Engineers under Section 404).  The EPA’s program is strict – in fact here, by regulation, EPA prohibits any “discharge of process wastewater” from gold mines like Coeur Alaska’s into waters of the United States – the Corps program is lax.

So Couer Alaska had a bright idea: let’s use pollutants as fill material and argue that we only have to get a permit from the Corps of Engineers.  Sadly, both the Bush Administration and a majority of the Supreme Court bought into this argument, even though Justice Ginsburg powerfully explains in dissent why the Clean Water Act’s “text, structure, and purpose all mandate adherence to EPA pollution-control requirements.”

thisismattholt asked: Who owns the lake? Is it already contaminated? Is it an isolated reservoir? How big is it? Is it a natural lake or created by the company?

Doug Kendall: The lake in question is a natural lake, called the Lower Slate Lake.  There is no indication that there was any prior contamination and it is uncontested that the slurry would kill all aquatic life in the lake while the mine is in operation.  The Lake is located in the Tongass National Forest in southeastern Alaska – the country’s largest national forest – and is therefore controlled by the federal government.  It is fairly small and deep, “800 feet at its widest crossing, 2,000 feet at its longest, and 23 acres in area…and 51 feet deep at its maximum” according the opinion. The lake is not naturally isolated: the plan was to damn the lake and divert streams around to prevent the slurry from migrating.


jdamian made the following point:  “This sets a precedent for corporations continual rape and destruction of land, air and water...with drastic results.”

Doug Kendall: This case undermines the central vehicle established by the Clean Water Act to prevent pollution of our nation’s waters – the NPDES pollution discharge permitting system.  It’s a bad ruling that will encourage other corporations, like Coeur Alaska, to continue to seek less restrictive permits for discharging material into lakes than what the Clean Water Act actually requires.  The good news is that the Obama Administration should be able to reverse the practice allowed here pretty easily and, thus, the impact of this particular ruling will hopefully be fairly narrow.
Far more troubling from my perspective is the fact that environmentalists lost all five cases heard by the Supreme Court this term and, in each of these cases, we had won in the court below.  Collectively, these deeply divided opinions are very significant and we see the Court chipping away at our most important federal environmental statutes, including the Clean Air Act, the Clean Water Act, the Endangered Species Act, and CERCLA (which addresses the cleanup of sites contaminated by toxic waste).

csmonut made the following point:   Gee...does this ruling from the Supreme Court mean that wastewater treatment plants no longer have to abide by the EPAs CWA? Does this mean they can just quit treating the water and send the waste directly into the discharge waters? If the Supreme Court says it's OK to discharge and dump toxic *#@* into the lakes and streams, then it's OK for wastewater treatment plants.

Doug Kendall: The specific ruling in Coeur Alaska is limited to the context where discharge of pollution could also legitimately be called fill activity.  Collectively, the Court’s rulings this term and in prior terms have seriously undercut the coverage and force of the Clean Water Act, triggering legislation called the Clean Water Restoration Act, which recently was approved by the Senate’s Committee on Environment and Public Works.  Folks concerned with these rulings should consider the need for this legislation.


P.S. We did take the one question that many of you posted, "WTF??" to Doug, but apparently he used his better judgement and answered the more tangible questions. Many thanks to every one who posted questions, and a very special thank you to Doug Kendall and team to make time for this interview during a very busy time in their schedule.


Doug is founder and President of the Constitutional Accountability Center (CAC), a think tank, law firm and action center dedicated to fulfilling the progressive promise of our Constitution‚s text and history. He previously founded and directed Community Rights Counsel (CRC), CAC‚s predecessor organization. Doug has represented state and local government clients in state and federal appellate courts around the country and before the U.S. Supreme Court. He is co-author of three books and lead author of numerous reports and studies. He launched and helped direct (with Earthjustice) the Judging the Environment Project, a comprehensive effort to highlight the environmental stakes in the future of the U.S. Supreme Court and appointments to the federal bench. Doug has appeared on television programs including Nightline, 20/20, World News Tonight, Inside Politics, and Burden of Proof and radio broadcasts such as NPR, CBS News, and the Sam Seder Show. His academic writings have appeared in journals including the Virginia Law Review, the Harvard Environmental Law Review, and the Georgetown Journal of Legal Ethics. His commentary has run in The New Republic, Slate and dozens of major papers including The Washington Post, USA Today, and The Los Angeles Times. Doug is a blogger on Huffington Post. Doug received his undergraduate and law degrees from the University of Virginia.