Monday was the 40th anniversary of the environmental disaster that gave America the Clean Water Act -- the day the Cuyahoga River caught fire. But memories on the Supreme Court are either short or very long. In a remarkably crabbed opinion, the Court ruled yesterday that as long as a pollutant contains enough solid material to reduce the size of a lake or river, it is not a pollutant, is outside the jurisdiction of the EPA, and can be reviewed only by the Army Corps of Engineers.
The case in point was the Kensington Gold Mine in Alaska, whose operators, Coeur Alaska Inc., want to dump all of its mine tailings into pristine Lower Slate Lake. This was not the original plan filed by the mine owners -- their original tailing disposal plan kept the waste on land. But when the Bush administration changed the definition of "fill" under the Clean Water Act to make life easier for mining companies, Coeur Alaska decided it would be cheaper and more expedient to dump all 4.5 million tons of its waste in Lower Slate Lake in the heart of the Tongass National Forest. The 9th Circuit Court had said "not so fast" and voided the permit. Pollution, the judges said, does not stop polluting just because it also fills up the lake.
Now comes the Supreme Court to rule, 6-3, that the Bush administration was within its rights to redefine pollution so that nothing solid can, by definition, be a pollutant. The mischief this opens up is almost incomprehensible -- the first step in most pollution-control technologies is to separate out the solid stuff, so you can clean up the liquids before releasing them. Now polluters can merely skip that first, cheapest step and, voila, they're no longer required to get a water-pollution permit!
Karl Marx commented that in a revolutionary time "all that is solid vanishes into air." Thanks to the Supreme Court, all that is solid in the U.S. can now vanish into our lakes, rivers and streams. As Justice Ginsberg commented in dissent, "A discharge of a pollutant, otherwise prohibited by firm statutory command, becomes lawful if it contains sufficient solid matter to raise the bottom of a water body, transformed into a waste disposal facility."
The majority logic is really quite astonishing. One reason cited for permitting Coeur Alaska to discharge into the Lower Slate Lake was that this was simpler for the company -- all it needed to know was that its discharge contained enough solids to fill the lake. Otherwise, the disturbed justices lamented, a polluter might be required to ascertain whether its pollutant violated "one of the hundreds of discharge standards" that the EPA has established under the Clean Water Act. Well, yes, that is how the law usually works. You're supposed to know whether you are complying with all of its requirements! As Justice Ginsberg pointed out, it is neither illogical nor unprecedented for the law to say that a proposal to dump something into a lake must get permission from two different agencies -- one for its potential to pollute, and the other for its impact on the physical shape of the lake.
Now it's important to understand that all of this mischief began with an improper Bush administration rulemaking that allowed mining wastes to be dumped into rivers, streams, and lakes as "fill." There is no constitutional or even statutory issue here. The Court's majority is simply genuflecting to Bush's regulatory misdeeds. And the Obama administration can, should, and must move promptly to undo this evil.