Legal Roundup 3 -- Pebble Mine

This week’s Northern Passages blog post reviews the current legal status of a large mine, known as Pebble, proposed for development in the headwaters of Alaska's Bristol Bay. 

Over the last several years, the parallel goals of sustainable fishing, indigenous rights and wilderness values created a broad coalition opposed to large-scale mining in the Bristol Bay watershed, which sustains one of the world’s last and greatest strongholds of wild salmon.

The conservation community was a key part of this coalition until last summer, when the U.S. Environmental Protection Agency proposed to adopt restrictions that would effectively prohibit mining at the scale contemplated by Northern Dynasty, which owns the mineral rights to the Pebble deposit ("Pebble"). 

At that point, many conservationists, within Alaska and around the country, quietly declared victory and, in essence, moved on. 

This was premature. 

The regulatory proceedings are currently in legal limbo due to litigation brought by Pebble.  As a result, the EPA has not issued a final determination on the mining restrictions and, as of now, a federal court order bars the agency from taking any further action.  

Despite breathless rhetoric on both sides, the mining proposal is not dead and the threat to the headwaters that sustain the Bristol Bay salmon fishery has not been removed. 

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The Pebble deposit is a very large copper, gold and molybdenum mining project that is proposed to be developed in the headwaters of Alaska's Bristol Bay.  This watershed also supports a salmon fishery of substantial economic, cultural and ecological value that would be threatened by the proposed mine.  

As the Washington Post has reported  (click here for article), the problem is largely that the ore "exists not in nuggets or flakes but in fine particles that must be extracted through an industrial process that involves pulverizing the ore and using cyanide and other chemicals to separate the valuable metals."  In addition to other infrastructure, this creates a need for an open pit mine about the depth of the Grand Canyon and for enormous containment ponds in one of the most seismically active areas on the planet. 

The EPA's Proposed Determination and the Executive Summary provide a lot of detail about the proposed mining operations and the threats they would pose to the salmon fishery and other values.  Click here to read selected highlights from the EPA's Executive Summary.  Click here for the full text of the Executive Summary and click here for the full text of the EPA's Proposed Determination.

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Here is the current state of play on the legal front:

In January 2014, the EPA released a comprehensive watershed assessment in which it examined the potential impacts of reasonably foreseeable mining activities in the headwaters of Bristol Bay, including but not limited to the proposed Pebble Mine. 

Based on the risks identified in that assessment, in July 2014 the EPA issued a Proposed Determination under Section 404(c) of the Clean Water Act, which authorizes the agency to deny or restrict certain activities whenever it has determined that there would be an unacceptable adverse effect on fishery areas.  The EPA then held a series of public hearings on its proposal, which included restrictions on large-scale mining, over the course of last summer.  Final regulatory action on the proposed restrictions was expected by year end.

However, before the EPA could complete its regulatory process, the Pebble Limited Partnership (which is owned by Northern Dynasty and in turn is the owner of the relevant mineral interests) launched a number of legal challenges.  The lawsuits allege under various theories that the EPA’s actions were invalid as a matter of regulatory and statutory law.

It is important to understand that these challenges are based entirely on procedural claims.   Pebble’s current lawsuits do not address the actual merits of whether the EPA should exercise its 404(c) powers.

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One of the legal challenges was to the effect that it would be premature for the EPA to use Section 404(c) before Pebble has even filed for necessary permits from the U.S. Army Corps of Engineers.  A federal district court dismissed this challenge last September, ironically on the grounds that it was premature for Pebble to make this claim before the EPA has even determined what its final action will be.

The other principal legal challenge is a lawsuit alleging that the EPA improperly sought the advice of special interests in the environmental community, who then secretly assisted the agency in preventing Pebble from exercising its rights to develop the mineral interests.  Pebble complains that these alleged actions violated the Federal Advisory Committee Act (FACA), which requires the government to follow certain procedures related to the public accountability of groups from which it seeks consensus advice.

In November 2014, the federal district court granted Pebble’s request to block the EPA from taking additional steps to complete its regulatory process until the FACA lawsuit has been fully aired.  As a result, the EPA’s activities are currently suspended.

Oddly enough, the first lawsuit was dismissed because the EPA has not yet taken final action, while the order in the second lawsuit currently prevents the EPA from actually taking any final action.  Hence, the legal limbo.

Next month will be eventful, with oral arguments scheduled to be heard at both the district court and the appeals court level.  On May 14, the 9th Circuit Court of Appeals will hear Pebble’s appeal from the district court’s order dismissing the initial challenge to the EPA’s actions as being premature.  And then, on May 28, the federal district court will hear arguments on the EPA's motion to dismiss Pebble’s FACA lawsuit.  

Rulings on these matters will come later.

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Then what? 

Assuming that the 9th Circuit affirms the dismissal of the first claim and that the district court dismisses the FACA argument and lifts the current state of limbo, it seems likely that the EPA would then proceed to a final determination under Section 404(c).  Based on its risk assessment from 2014, it is likely that the EPA's decision would be to prohibit mining in Bristol Bay at the scale contemplated by Pebble. 

At that point, Pebble would almost certainly bring a new challenge to the EPA's authority under the Clean Water Act and the agency's decision on the merits.  So there would be a new round of legal wrangling and uncertainty.

Meanwhile, the EPA itself is under attack from Republicans in Congress, many of whom seek to defund or abolish it, notwithstanding its historical roots as a creation of the Republican administration of President Nixon.   

In other words, the battle to preserve the headwaters of the Bristol Bay fishery is far from over. 

Stay tuned. 

The Bristol Bay watershed in Wood-Tik Chik State Park, downstream from the proposed Pebble Mine, as seen from the cockpit of a de Havilland Beaver.

The Bristol Bay watershed in Wood-Tik Chik State Park, downstream from the proposed Pebble Mine, as seen from the cockpit of a de Havilland Beaver.

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In related news:

The Bristol Bay Forever Initiative received approval by almost 70% of the votes in a statewide referendum last November.  The initiative prohibits any large-scale metallic sulfide mine, such as Pebble, in the Bristol Bay watershed unless the state legislature has determined that the mining activity will not constitute danger to the fishery.  This means that legislative approval, in addition to regulatory permitting, would be needed in order for a mine to proceed.  Similar requirements were already in place for certain oil and gas projects in the region.

The Bristol Bay Forever Initiative was challenged in the courts.  However, the Alaska Supreme Court ruled last summer that the initiative was eligible to appear on the November ballot, and the court recently confirmed its order in a written opinion -- so at least that one seems to be settled.

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For previous Northern Passages blog posts discussing legal issues relating to the Pebble Mine, see Legal Roundup and Legal Roundup 2