Dismissal arguments heard in Pebble-EPA case

Pebble Limited Partnership and the Environmental Protection Agency argued in court May 28 whether the agency violated federal law in developing the Bristol Bay Watershed Assessment, which is the basis for its effort to block Pebble mine.

The oral arguments on the EPA’s motion to dismiss Pebble’s lawsuit were heard in Alaska U.S. District Court by Judge H. Russel Holland.

Justice Department attorney for the EPA Brad Rosenberg said the agency did not violate the Federal Advisory Committee Act as Pebble contends, because the EPA had the same type of contact with Pebble as it did with the groups and individuals Pebble claims it conspired with to stop mine development.

The Federal Advisory Committee Act, or FACA, was enacted in 1972 to set guidelines for federal agencies and ensure committees they form are objective and open to the public.

Pebble claims it was shut out of the assessment process, but it had regular contact with EPA staff at all levels beginning in 2003, Rosenberg argued.

“Pebble had a role in creating the Bristol Bay Watershed Assessment,” he said. “If anything, Pebble had unprecedented access to the EPA.”

Rosenberg said the EPA officials all they way up to the administrator met with Pebble about 30 times from 2003 to 2013.

The mine developers simply disagree with the science in the assessment, according to Rosenberg.

He said the FACA requirements are narrow and do not apply in this instance.

In February 2014, shortly after releasing the final version of the 1,000-plus page Bristol Bay Watershed Assessment, the EPA announced it would begin the process to block development of Pebble’s gold and copper claims with its authority under Section 404(c) of the Clean Water Act.

Coincidentally on May 28, a three-judge 9th Circuit Court of Appeals panel dismissed another Pebble lawsuit against the EPA claiming harm from the 404(c) mine veto. Holland initially dismissed that case last September because the agency hadn’t issued its final action, thus making Pebble’s argument not ripe for consideration, at least for the time being.

The assessment concluded that large-scale surface mining in the Bristol Bay region would significantly impact the robust salmon and resident fisheries in the area.

Pebble filed suit the suit argued May 28 before Holland in September 2014, alleging the assessment to be biased. Holland issued an injunction halting the 404(c) veto process in November to prevent the agency’s action from becoming final during the lawsuit.

Pebble attorney Roger Yoerges argued that the EPA set up “de-facto” advisory committees based on contact the agency had with anti-mine groups, which is evidenced in the documents obtained from Freedom of Information Act requests Pebble has submitted to the EPA.

“The government is saying a federal committee cannot exist unless they say it exists,” Yoerges said.

In its complaint, Pebble attorneys claim the agency set up three informal advisory committees the mining company dubbed the “anti-mine coalition,” the “anti-mine scientists” and the “anti-mine assessment team.”

Rosenberg countered that an agency can’t inadvertently set up an advisory committee.

A formal advisory committee must be made up of a balanced panel of members and publish actions in the Federal Register.

He also said the 2010 emails between anti-mine activists and then-EPA ecologist Phillip North that Pebble has touted as prime examples of the bias within the agency were to a “low-level” agency scientist and had little impact on the assessment, officially undertaken in 2011.

Yoerges said the EPA attorneys were arguing the facts of the case appropriate for a summary judgment motion during a hearing for dismissal, and that further discovery would allow Pebble to flesh out its allegations, he said.

“We suspect more discovery will show more documents in support of our view,” Yoerges said.

In his rebuttal, Rosenberg called the advisory committees “nothing more than a figment of (the) plaintiff’s imagination.”

He said everybody wanted the EPA to hear their respective views during and before the assessment process.

Rosenberg noted that the EPA regional administrator could have initiated the 404(c) process in 2010 if the agency’s mind was made up at that time, but decided to do a detailed scientific assessment of the resource in question.

He said the Bristol Bay Watershed Assessment is a final, standalone scientific document, separate from the pending 404(c) action. However, senior EPA officials have cited the assessment as the basis for starting the mine veto process.

Finally, Rosenberg said Pebble would still have a chance to further voice its position on the 404(c) process if the injunction is lifted.

When Holland issued the injunction halting the veto effort last November, he said the 404(c) process could result in “no action, but it isn’t headed that way.”

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

Updated: 
11/21/2016 - 8:11pm