Cohen Group questions EPA’s Pebble process

  • Former Enviornmental Protection Agency Administrator Lisa Jackson, right, talks with Dorothy Larson of Dillingham at the EPA listening session on the proposed Pebble mine on July 28, 2010, in Dillingham. A study prepared for the Pebble Limited Partnership concludes that the EPA process developing the Bristol Bay Watershed Assessment wasn’t fair to all stakeholders and should have followed established permitting procedures. AP Photo/Margaret Bauman/Alaska Newspapers

Former Maine Senator and Defense Secretary William Cohen agrees with Pebble Limited Partnership on at least one point: the Environmental Protection Agency’s Bristol Bay Watershed Assessment is not an adequate document to replace the federal environmental permitting process.

Pebble contracted Cohen to review the procedure the EPA used to develop the assessment, which is the document the agency has based its Clean Water Act Section 404(c) proposed determination on.

Section 404(c) of the Clean Water Act gives the EPA authority to prohibit any development project that it deems would have an “unacceptable adverse effect” on wildlife and nearby water supplies.

Cohen asserts in the opening pages of the 364-page report that the work undertaken by him and his firm The Cohen Group was conducted as an independent review of the Section 404(c) action that began last year and the preceding events. He also notes that the report is not meant to take a stance on the project, rather it is to evaluate the process the EPA used in regards to Pebble.

He further stated that Pebble had no control over the conclusions he reached and was not allowed to perform any edits on the report.

More than 60 people were interviewed as part of the review process, including three former EPA administrators. The EPA did not allow current agency personnel to be interviewed for the report, according to Cohen.

He claims that the EPA’s use of the 404(c) authority “compounded the shortcomings” of the assessment, that it used assumptions based on economic analyses done for Pebble to draw its conclusions instead of actual permit applications.

Cohen states that EPA personnel had “inappropriately close relationships with anti-mine advocates” while compiling the assessment, raising questions as to whether the agency “orchestrated the process to reach a predetermined outcome.”

A key argument in Pebble’s second lawsuit against EPA is that agency personnel and mine opponents formed de-facto advisory committees, which left Pebble out of the loop while researching the Bristol Bay Assessment, and violated public processes intended to be objective.

Pebble is the first time the EPA has used its 404(c) authority to attempt to block a project before Clean Water Act permit applications have been submitted to the U.S. Army Corps of Engineers, which handles the permitting process for the agency. A U.S. District Court judge has stopped the 404(c) initiative at least temporarily while Pebble’s claims are heard in court.

The EPA Inspector General is also examining the agency’s actions in regards to the Bristol Bay Watershed Assessment and Cohen calls for a Congressional Oversight Committee review.

“This project is too important, for all stakeholders, to pilot a new, untested decision-making process,” Cohen wrote. “The fairest approach is to use the well-established permit/(National Environmental Policy Act) process, and I can find no valid reason why that process was not used.”

He bases his conclusion at least partly on the EPA’s concession in comments to peer reviewers that gaps in the 1,100-page assessment that would be addressed in the NEPA process, which Pebble has not yet attempted to initiate.

Sen. Lisa Murkowski criticized Pebble in 2013 for leaving Alaskans wondering if the controversial project would ever be built and called for the then-Northern Dynasty Minerals and Anglo American consortium to release more specifics about its plan.

Pebble opponent groups were quick to criticize Cohen’s report after its release. Statements from Trout Unlimited Alaska, United Tribes of Bristol Bay and Commercial Fisherman for Bristol Bay all highlighted the fact that it was paid for by Pebble Limited Partnership.

“The report wants Americans to believe that Pebble is the victim of an ‘unfair’ process. Let’s be clear, EPA’s process is one that is authorized by Congress under the Clean Water Act and is intended to be used in circumstances where mine activities will do insurmountable damage to the spawning rivers and habitat of this country’s last great sustainable wild resource: salmon,” a statement from United Tribes of Bristol Bay reads.

Trout Unlimited Alaska Director Nelli Williams called the report “propaganda disguised as a credible document.”

Pebble CEO Tom Collier said in a release that the EPA failed to take into account the potential economic benefits of a mine to an economy reliant upon a seasonal resource or the use of mitigation and control measures to reduce a mine’s impact on the environment, points noted by Cohen.

“This report clearly makes the case about the criticality of a stable, objective and transparent permitting process for evaluating resource projects such as Pebble,” Collier said. “We did not ask The Cohen Group to evaluate a mine at Pebble as our view remains that this should be handled via the permitting and NEPA review process. The report validates the established regulatory and NEPA process is the fairest and most appropriate process for evaluating a complex issue such as ours.”

The report also notes that Pebble participated in the assessment process with the EPA’s assurance that the final document would not be used to make a Section 404(c) decision.

Since the release of the final Bristol Bay Watershed Assessment in January 2014, the EPA has acknowledged its conclusion that large-scale mining in Bristol Bay would significantly and irreparably damage the region’s salmon fisheries was drawn from the assessment as the primary evidence for working to ban the proposed mine.

The official assessment process began in February 2011.

Updated: 
11/24/2016 - 2:13pm

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