Pebble appeals; second suit fast-tracked

Pebble Limited Partnership appealed the dismissal of its lawsuit against the Environmental Protection Agency Oct. 6 as a second suit seeking an injunction against the EPA is on a fast track for a ruling before the end of the year.

The company sued the EPA in May as the agency began a process to ban development of the Pebble copper and gold deposits northwest of Iliamna.

U.S. Alaska District Court Judge H. Russel Holland dismissed the case Sept. 26 on several of Pebble’s claims because no decision has yet been made by EPA. The case will go before the federal 9th Circuit Court of Appeals.

The Alaska Peninsula Corp., a Native village corporation that owns land adjacent to the state-owned mineral deposits, is also listed as a plaintiff supporting Pebble in the case.

During a Sept. 4 speech before the Resource Development Council of Alaska Pebble CEO Tom Collier said the company has no plans to give up its fight.

“We’re going to be very aggressive. If we are not successful with Plan A, we have a Plan B, C, and D,” Collier said.

If Plan A is the first lawsuit, Plan B would be a second suit Pebble filed against the EPA a day before Collier’s speech, Sept. 3.

In the second case — in which Pebble is the sole plaintiff and Holland is also the presiding judge — Pebble claims EPA personnel violated the Federal Advisory Committee Act by collaborating with environmental activists and anti-mining scientists “in the development and implementation of EPA’s unlawful scheme to use Section 404(c) preemptively to prohibit mining of the Pebble deposit,” according to the complaint.

Citing emails obtained under the Freedom of Information Act, Pebble points to ongoing communications between EPA Region 10 staff and outside groups for years preceding and during the process of developing its Bristol Bay Watershed Assessment that is being used as the basis to prohibit the mine preemptively.

Pebble argues the Federal Advisory Committee Act prohibits such informal advisory committees outside the public process and is seeking an injunction based on the violations as case precedents have not favored such claims after a final decision has been reached.

Unlike the case that was dismissed because the EPA had not made a final decision on Pebble, this case is proceeding on a fast track so that Holland may rule on the injunction before a final decision is reached.

Holland initially granted Pebble a hearing on the injunction for Sept. 26, but the EPA argued that was far too soon to adequately respond and that no decision was imminent.

Based on the EPA’s motion, Holland canceled the hearing and set an expedited timeline. The EPA’s reply to the motion for preliminary injunction is due Nov. 7, and a hearing on the motion for injunction is set for Nov. 24.

EPA Region 10 Administrator Dennis McLerran is prohibited from issuing a recommendation on the proposal to block Pebble any earlier than Jan. 2, a stipulation agreed to by both parties.

While the 404(c) authority has been used 13 times since the Clean Water Act was passed in 1972, the Pebble instance would be the first in which the EPA blocked a project based on possible wetlands habitat damage prior to a project plan being unveiled or a 404 permit being submitted.

The EPA Inspector General’s office is in the midst of reviewing how the agency conducted its Bristol Bay Watershed Assessment; the exhaustive document that is the basis for the 404(c) action.

If developed, the Pebble deposits could be turned into one of the largest surface primarily copper mines in the world, according to Pebble leadership. The area is estimated to hold about 80 billion pounds of copper and more than 100 million ounces of gold.

Mine proponents emphasize the 1,000 or so jobs it would create in an economically depressed region of Alaska. Its opponents, led by conservation and commercial fishing organizations and Bristol Bay Native Corp., say it would put the largest sockeye salmon runs in the world in peril, particularly because of its size and location at the headwaters of the Bristol Bay watershed.

 In his 15-page dismissal order of the initial Pebble suit, Holland wrote that EPA’s February decision to initiate the use of its Clean Water Act Section 404(c) authority to block projects it feels would adversely impact wetlands and associated fish and wildlife “does not represent the consummation of the agency’s decision-making process, but rather the commencement of the agency’s decision-making process.”

Pebble has claimed that employing 404(c) authority prior to a mine plan or wetlands permit application being submitted is unfair and that the EPA is prejudiced against the project.

Further, Holland ruled that the EPA’s decision to begin the lengthy 404(c) administrative process prior to Pebble submitting permitting or plan documents to the Army Corps of Engineers, which handles wetlands permits, does not overstep the agency’s authority.

Holland wrote that Pebble could challenge the agency’s 404(c) power, but that it must wait to do until the proceedings, expected to take about a year, are complete.