Pebble, EPA reach court settlement

  • A helicopter hovers over a camp at the Pebble mine prospect in this 2010 file photo. The owners of the prospect and the Environmental Protection Agency announced the settlement of two lawsuits on Friday, May 11, 2017, that will allow a permit application to be filed and prevent the EPA from issuing a Clean Water Act determination on the project for four years, or until a final environmental impact statement is completed. (Photo/Andrew Jensen/AJOC)

Pebble Limited Partnership and the Environmental Protection Agency have agreed to walk away from the courtroom, with Pebble getting to keep its project alive and the EPA holding on to its critical Bristol Bay Watershed Assessment.

The sides announced a deal May 12 to settle two lawsuits brought by Pebble owner Northern Dynasty Minerals Ltd., a Vancouver-based junior mining company, against the federal agency in 2014 that contended the EPA under former President Barack Obama illegally colluded with opponents of the massive proposed Bristol Bay-area copper and gold project in drafting the Bristol Bay Watershed Assessment.

The 1,000-plus page environmental assessment is the document upon which the agency founded its proposed determination that a large open-pit mine would cause significant and irreparable harm to the prolific salmon fisheries that are the foundation of the region’s economy.

Specifically, the settlement approved by Alaska Federal District Court Judge H. Russel Holland calls for the EPA to withdraw its proposed “veto” of the mine under Section 404(c) of the Clean Water Act, which the agency started in the summer of 2014.

In November 2014, Holland issued an injunction against the EPA prohibiting it from finalizing the proposed determination until the lawsuits were settled.

Additionally, the EPA cannot revisit the Section 404(c) action for four years or until the Army Corps of Engineers has completed an environmental impact statement for the project, whichever comes first. Pebble must also file its federal environmental permit applications for the mine within 30 months from now.

Pebble parent company Northern Dynasty Minerals has been roundly criticized — including by some state politicians opposed to the EPA’s actions — for failing to follow through on repeated claims made over more than a decade that they would apply for the permits and ultimately end speculation over the scope of the mine and whether it will ever be built.

The Clean Water Act gives the EPA administrator broad authority to prohibit development projects he or she determines would unacceptably harm the nation’s wetlands and waterways, regardless of other state and federal approvals a project may receive.

In the case of Pebble, however, the seldom-used 404(c) action was initiated earlier in a project’s maturation than the EPA had done previously and without a mine plan in place, points Pebble leaders emphasized.

The mining company also argued that the watershed assessment was a jaded and therefore meaningless document because the EPA did not follow Federal Advisory Committee Act guidelines and adequately consult with the company while compiling information for it.

Rather, EPA scientists and other agency officials sought out third-party experts opposed to the mine and then tried to hide their actions by limiting what was released in Freedom of Information Act requests made by Pebble, the company alleged further.

Now, Alaska Native, commercial fishing and conservation groups that have long insisted Pebble is a threat to the world’s largest sockeye salmon fishery — and by extension Bristol Bay residents’ longstanding way of life — argue the EPA under President Donald Trump and Administrator Scott Pruitt has colluded with Pebble in closed-door negotiations to reach a favorable settlement for the mining company.

“We are committed to due process and the rule of law,” Pruitt said in a formal statement about the Pebble settlement. “We understand how much the community cares about this issue, with passionate advocates on all sides. The agreement will not guarantee or prejudge a particular outcome, but will provide Pebble a fair process for their permit application and help steer EPA away from costly and time-consuming litigation. We are committed to listening to all voices as this process unfolds.”

Pebble Partnership CEO Tom Collier said the company is “excited to be able to introduce several new initiatives in the coming year that will more clearly define how the project will benefit residents of Bristol Bay and Alaska. Our project will be significantly smaller with demonstrable environmental protections. Chief among these is protecting the important salmon resource in Bristol Bay. It will be a busy and exciting year for the project and we look forward to engaging with Alaskans to discuss our plans.”

Northern Dynasty CEO Ron Thiessen told investors in January that the company plans to initiate Pebble’s permitting this year.

However, Northern Dynasty and Pebble leaders have also said they also need to attract another large company to help finance the process, which will likely cost several hundred million dollars even before construction.

Northern Dynasty’s former partner in Pebble London-based Anglo American dumped the project in 2013 after spending roughly $500 million on it.

State House Speaker Rep. Bryce Edgmon, who represents the Bristol Bay region, said in a May 12 statement that he is “keenly disappointed” by the settlement.

“Backing away from the agency’s painstaking work and analysis of the 404(c) issue following years of work to carefully construct a position that not only was supported by a number of tribes in the region but once again the majority of the people in the region,” Edgmon said. “The people of the Bristol Bay region do not need this kind of stress hanging over our heads continuing on year after year.”

Pebble opponents have also stressed that a majority of Alaskans do not want the mine developed based on a statewide voter referendum approved to limit mining in the Bristol Bay region.

Pebble leaders have discounted the 2014 ballot measure, asserting it is a clear violation of the Alaska Constitution.

United Tribes of Bristol Bay Executive Director Alannah Hurley said in a Friday release that the settlement won’t slow the fight against the mine.

“If there’s one thing I want you all (to) leave here with today, it’s this: Pebble may have its short-term victory today,” she said. “But, we as indigenous people have been on this land for over 10,000 years and we’re not going anywhere.”

Elwood Brehmer can be reached at elwood.brehmer@alaskajournal.com.

Updated: 
05/17/2017 - 12:43pm

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