Thanks to the Bush administration's industry-friendly rulings and a Supreme Court determined to ignore the plain language of the Clean Water Act, America's waterways are at risk of becoming industrial dumps.
The latest indignity was a 6-to-3 decision on Monday that will allow an American gold mining company to discharge 210,000 gallons a day of potentially toxic mining waste into a 23-acre lake near Juneau, Alaska. A joyous Sarah Palin, Alaska's governor, called the ruling a “great victory” for Alaska and, astonishingly, “a green light for responsible resource development.”
What it is, rather, is a green light for the extinction of every fish in the lake. The mining company says it will pretreat the waste and restore the lake's vegetation down the road, but we're not betting on it.
The decision was based in part on a 2002 Bush rule that cleared the way for the dumping of mining waste in previously protected waters. Until that rule, the Clean Water Act had stipulated that the Army Corps of Engineers could place “fill material” in waters when it was building bridges and levees. The Bush administration enlarged the definition of fill material to include contaminated mining waste, in clear violation of the law's intent. This is the same regulatory trick the corps relies on to allow coal mining companies in Appalachia to dump the waste from mountaintop mining into the valleys below — a practice that has obliterated 1,200 miles of streams.
Writing for the majority, Justice Anthony Kennedy argued that the court had little choice but to “accord deference” to the corps' reading of the law. To which Justice Ruth Bader Ginsburg replied, in effect, what about paying deference to the Clean Water Act?
The act, she rightly argued, states plainly that waterways cannot be used for waste disposal. The court's job, she suggested, is not to take refuge in ambiguities but to reaffirm the clear purpose of the law.
Fortunately, the ruling does not have to be the last word. The Obama administration can save that Alaskan lake — and other threatened water bodies — simply by reversing the Bush “fill” rule. Congress could also step in; a House bill that would reverse the rule already has 151 co-sponsors. Before any more damage is done, a way must be found to protect America's vulnerable waters.