Considering that the U.S. Supreme Court just ended its 2007-2008 term hearing the lowest number of cases since 1953-a grand total of only 67 cases with opinions on the merits-the recent announcement that the high court has agreed to consider the Kensington gold mine tailings permit case is almost miraculous.
An even better omen for Idaho-based Coeur d'Alene Mines is that the 9th U.S. Circuit Court of Appeals appeared to be one of the Supreme Court's favorite targets. This is the same Court of Appeals that last year refused to reconsider its decision revoking the Kensington 404 tailings permit.
The Ninth Circuit decision overturned a lower court decision and invalidated the Kensington tailings permit. Kensington is a major gold project 45 miles northwest of Juneau, Alaska. If the Supreme Court upholds the lower court or alternative permitting plans are approved, construction could take place next year, allowing the mine to produce its first gold in late 2009.
All the main surface facilities at Kensington are complete except for the disputed tailings facility. Kensington is expected to produce 140,000 ounces of gold annually over an initial mine life of 10 years.
The latest alternative plan calls for Coeur to seek paste-tailings permits, which could be ready sooner than the Supreme Court decision as the high court has recessed for the summer. U.S. Forest Service Juneau District Ranger Pete Griffin told the Juneau Empire newspaper that the federal environmental review of paste tailings for Kensington was on track to be finished in September. He also noted that the Supreme Court probably wouldn't hear oral arguments on the Kensington cases until January.
Originally, Coeur had planned to fill Lower Slate Lake with Kensington mine tailings. While Coeur has an Army Corps of Engineer permit to dispose of tailings in Lower Slate Lake, the 9th Circuit ruled Kensington had to get an EPA permit because if the tailings are determined to be wastewater, the EPA, not the Corps, would regulate the tailings disposal.
The U.S. Department of Justice, which represents both federal agencies, agrees with the State of Alaska and Coeur officials that the 9th Circuit Court opinion is in error. The web site Law.com noted that during the U.S. Supreme Court term just ended, the 9th Circuit was reversed in eight of the 10 cases review by the high court, a statistic, which if it holds during the 2008-2009 term, could be in Kensington's favor.
Environmental cases in general did not appear to constitute a hefty portion of the 2007-2008 Supreme Court's calendar. Only one prominent business environmental law case, Exxon Shipping v. Baker, even attracted the attention of the news media covering the Supreme Court. Once again, the high court's decision might potentially be interpreted as to favor business as in a 5-3 decision (with Liberal Justice David Souter authoring the majority opinion) in which the court threw out a $2.5 billion punitive damages award arising from the grounding of the Exxon Valdez in 1989, coincidentally in Alaska. The court said the award of punitive damages should have equaled the compensatory, or actual, damages of $507.5 million.
Law professors say that Chief Justice John Roberts has is becoming increasingly successful at steering the court toward a more minimalist-and easier to agree with-approach to deciding even the knottiest cases. The court was also more centrist this term in some areas of the law.
The U.S. Chamber of Commerce noted that several of its biggest defeats before the high court seemed to involve the U.S. Solicitor General filing against the chamber in every case we lost. In a news release issued Friday, Coeur d'Alene Mines Chairman, President and CEO Dennis Wheeler said the company was please that the Solicitor General's office in Washington has stated it will continue its support of the permitting agencies in upholding the original permit for Kensington tailings disposal.
State attorneys general say the importance of the case goes well beyond Kensington. Both the National Mining Association and the Mountain States Legal Foundation have also filed briefs on behalf of the mine.
Meanwhile, the presidential race may also play an important factor in the make-up of the Supreme Court with six justices now over the age of 68. Justices John Paul Stevens is 88 and Ruth Bader Ginsburg is 75.
However, Kensington Lower Slate Lake tailings disposal opponent Russell Heath, executive director of the South East Alaska Conservation Council (SEACC), told the Juneau Empire that I'm personally baffled by why they [Kensington's proponents] decided to go to the Supreme Court. He suggests that the paste-tailings plant alternative is the fastest way for getting the mine into operation.