The
New York Times described the denial as
“likely dealing a death blow to a long-disputed project that
aimed to extract one of the world’s largest deposits of copper and gold ore,
but which threatened breeding grounds for salmon in the pristine Bristol Bay
region.”
The Times, noting that the Corps of Engineers denied a
permit that was “critical” for the mine to clear Clean Water Act scrutiny,
quoted Colonel Damon Delarosa, Commander of the Corps’ Alaska District, who
said that the Pebble Mine was
“contrary to the public interest,”
and that
“it does not comply with Clean Water Act guidelines.”
Fishermen and conservation advocates heralded the denial.
Chris
Wood, the president and CEO of Trout Unlimited, said that
“The Corps denial of the permit for Pebble Mine is a victory
for common sense. Bristol Bay is the
wrong place for industrial-scale mining, and we look forward to working with
the people of the Bristol Bay region, Alaska’s Congressional delegation, the
state, and other partners to permanently protect Bristol Bay and its world
class victories.”
Nelli Williams, Trout Unlimited’s Alaska director, even went
a little farther, saying
“The denial of Pebble’s permit is a victory for American
jobs, rural communities, and a fishing and hunting paradise long threatened by
this shortsighted and reckless proposal.
With this behind us, the people of Bristol Bay can start the work of
ensuring the region is protected into the future from threats.”
But is the Pebble Mine truly “behind us,” or is the denial
of the permit application merely one more step in a dance that has gone on for
over a decade, and has caused conservationists to both exalt and despair, in
turns, as past victories were overturned, new threats
arose and, now, those threats, too, appear to have been defeated?
It’s difficult to say with any
certainty.
“a possibly fatal wound to the Pebble
project,”
and openly wondered whether
investors would be willing to provide that project with further funding. But he also noted that the Pebble Mine’s
“backers are seemingly relentless in their
desire to push forward.”
Recognizing the fact of their
relentlessness, just what could such backers do to again bring Pebble Mine back
from the dead?
The first and easiest step might
be to simply amend their application to address the Corps of Engineers’
objections, and then reapply.
The Corps of Engineers’ announcement
of the initial application’s denial stated, in part, that
“This administration supports
the mining industry and acknowledges the benefits the industry has provided to
the economy and productivity of this country, from job creation to the
extraction of valuable resources, which are especially important as we recover
from this pandemic. The Pebble Mine
project has the potential to fulfill all of those needs; however, as
currently proposed, the project could have substantial environmental
impacts within the unique Bristol Bay watershed and lacks adequate compensatory
mitigation…
“Therefore, the Corps finds that the
project, as currently proposed, cannot be permitted under Section
404 of the Clean Water Act… [emphasis
added]”
It’s repetition of the phrase “as
currently proposed” could be read as an invitation to the Pebble Limited Partnership
to reapply to the Corps for approval, after amending the application to take
account of the Corps’ stated concerns.
But the announcement’s opening words, that “This administration supports
the mining industry,” could also be read as a warning that, if the Pebble Limited Partnership wanted to maximize its likelihood of success, it ought
to act quickly, so that any new application could be acted upon before president-elect
Joe
Biden, who has expressed his opposition to the Pebble Mine, in inaugurated at
noon on January 20, 2021.
Yet even if Pebble Limited
Partnership submitted a new application quickly, there’s no guarantee that such
application would receive more favorable treatment than the last one, or that
there would be sufficient time left in the Trump administration’s tenure to
allow the application to be considered and approved.
Right now, it appears that rather
than submit a new application, Pebble Limited Partnership will instead appeal
the Corps’ decision to the Corps’ Pacific Ocean Division’s Engineer, who is
headquartered in Hawaii. The Partnership
has 60 days to submit such appeal.
However, 60 days after the
disputed decision was handed down, Joe Biden will be President of the United
States, making it unlikely that such an appeal will be successful.
That means that the appeal will
serve mainly to exhaust Pebble’s possible administrative remedies, and so allow it to pursue its next possible course of action: litigation.
While the federal agencies’
decisions are often challenged in court, most of those challenges fail. Courts may
not substitute their judgement for that of the agency; they may only determine
whether an agency decision meets certain minimum standards. Among other things, an
agency decision can be legally challenged if a court finds it to be arbitrary,
capricious, an abuse of discretion, or otherwise contrary to law; unconstitutional;
not authorized by statute; made without following proper procedure; or unsupported
by substantial evidence. Usually, in
most administrations (the Trump administration being a very notable exception),
agencies are careful to have their counsel review regulations before issuing
them, to be sure that such standards are met.
However, the Pebble Mine record
isn’t completely straightforward. In
2014, under President Barak Obama, the Environmental Protection Agency found
that the Pebble Mine
“would likely cause irreversible destruction
of streams that support salmon and other important fish species, as well as
extensive areas of wetlands, ponds and lakes,”
and halted development of the mine
due to Clean Water Act concerns.
The mine’s developers sued,
challenging the EPA’s actions. That
litigation was pending when Trump found his way to the White House. Shortly thereafter, on May
1, 2017, his chosen EPA administrator, Scott Pruitt, met with the CEO of Pebble
Limited Partnership. About an hour after
that meeting began, Pruitt instructed his staff to reverse the permitting halt
put in place during President Obama’s term, and to allow the process to move forward.
Again, there were some stops and
starts, but on
July 30, 2019, the EPA announced that the regional administrator with
jurisdiction over the Bristol Bay region had formally withdrawn the 2014
determination halting the permitting process.
Saying that
“the 2014 Proposed Determination…was issued
preemptively and is now outdated,”
the Trump EPA allowed the process to continue. On July 24, 2020, the
Army Corps of Engineers released the final environmental impact statement for
the project, which found that the project would not cause substantial harm to
the fisheries of the Bristol Bay watershed.
That environmental impact
statement seemed to open the door to a permit for the Pebble Mine, but just
a month later, the Corps took a step back, announcing that because the mine
“would result in significant degradation to…aquatic
resources,”
Pebble Limited Partnership would
have to offer a plan to mitigate the mine’s damage to such resources before the
permitting process could move forward, with the Corps stating that
“in-kind compensatory mitigation within the
Koktuli River Watershed [which would have been most affected by the mine] will
be required to compensate for all direct and indirect impacts caused by
discharges into aquatic resources at the mine site.”
While that sounds fine on its
face, there was one big problem—the
Bristol Bay Watershed, which includes the Koktuli River Watershed, is in such
good condition now, that it would probably be impossible to make any improvements
to it that could be offered as mitigation for damage caused by the mine. As Joel Reynolds, Senior Attorney for the
Natural Resources Defense Council said in reaction to the mitigation
requirement,
“It’s a perfectly functioning pristine,
natural ecosystem. It’s an incubator for
trillions of salmon over thousands of years, and the notion that Northern
Dynasty (Pebble’s parent company) has anything to offer it in terms of
improvement is ridiculous.”
Thus, it probably isn’t surprising
that the mitigation measures proposed by Pebble Limited Partnership in its
permit application were deemed inadequate, and the application denied, by the
Corps.
It also wouldn’t be
surprising if Pebble didn't try to use the seemingly contradictory actions taken,
over the years, by President Obama’s and by Trump’s administrations, to argue
that the government was acting in an arbitrary and capricious manner when it
ultimately rejected Pebble’s application.
Maybe a court would buy that argument. Maybe it would be rejected. But the fact that two Supreme Court justices,
Clarence Thomas and Neil Gorsuch, and probably
Amy Coney Barrett and Brett
Kavanaugh as well, seem to disfavor the so-called “Chevron doctrine,”
which requires courts to give deference to agency interpretations of the
statutes which they are empowered to administer might encourage Pebble to
litigate the matter as far as the courts will allow.
Thus, while the most recent
rejection of the Pebble Limited Partnership’s permit application was certainly
good news, it is not enough to guarantee the integrity of the Bristol Bay
watershed. Greater protections are
needed.
“The critical next step is to reestablish the
Clean Water Act protections for America’s greatest salmon fishery—protections that
should never have been done away with in the first place. This can and should be an early priority for
the Biden administration.”
“we’re focusing on the next step of working
with Sen. [Lisa] Murkowski and everyone else who said they support permanent
protections for the region.”
That “everyone else” would
presumably include Sen.
Maria Cantwell (D-WA), who recognizes the continued threat posed by the Pebble
Mine and has called for additional protections that will prevent it from being
developed.
Hopefully, advocates for Bristol
Bay will continue to work with federal legislators and with the incoming Biden
administration to assure that such protections are put in place. For without them, the Bristol Bay watershed,
and the salmon and other natural resources of the region, will never be truly
safe.
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