Alaska Politicians Seek To Overturn EPA’s Pebble Mine Protection Veto (Updating)
You never know when there will be more Pebble Mine drama. This time it’s in the form of Gov. Mike Dunleavy and the state’s Attorney General Treg Taylor calling on the Supreme Court to reverse the Environmental Protection Agency’s veto that essentially blocked the Pebble Mine project from ever getting off the ground.
Here’s the press release from the state on the legal action being pursued by the state’s leaders:
(Anchorage, AK) – When the U.S. Environmental Protection Agency, (EPA), barred the U.S. Army Corps of Engineers, (Corps), from issuing any permit under Section 404 of the Clean Water Act for 309-square-miles of State land in Southwest Alaska, it effectively confiscated State property and created a de facto national park. Today Alaska Attorney General Treg Taylor filed a brief, calling on the U.S. Supreme Court to order the EPA to correct its wrongdoing.
Section 404 of the Clean Water Act requires the Corps to issue a permit before any dredged or fill material can be discharged into waters of the United States. In January 2023, the EPA issued its final determination, known as a 404(c) veto, that not only specifically prohibited permitting the Pebble Mine according to a 2020 mining plan, but also restricted any future permit to construct or operate a mine in a 309-square-mile area surrounding the Pebble deposit. The EPA action usurps the State’s ability and responsibility to protect its own natural resources.
“An original action, where a case is heard directly by the Supreme Court instead of first progressing through the lower courts, is an extraordinary ask, but it’s appropriate given the extraordinary decision being challenged,” said Attorney General Treg Taylor.
“No other State in the union depends so greatly on its lands for its prosperity,” the brief contends. “Unlike most States, Alaska is constitutionally required to protect its natural resources. The State must provide for the “conservation of all natural resources belonging to the State, including land and waters, for the maximum benefit of its people.”” Nonetheless, EPA made its final determination under Section 404(c) of the Clean Water Act before the State processes could work through the Pebble Project.
“Our constitution is clear: Alaska is responsible for utilizing, developing, and conserving all of the State’s natural resources for the maximum benefit of its people,” said Alaska Governor Mike Dunleavy. “Bureaucrats in Washington D.C. are exercising unbridled and unlawful power to choke off any further discussion on this important decision affecting so many Alaskans.”
“The preemptive veto is alarming,” said Attorney General Taylor. “If EPA can rely on undefined terms and subjective standards instead of sound science to bypass the regular State and federal permitting processes here, it can do it anywhere, from large mining projects such as this, down to a family building their dream home. It’s an indefensible and unprecedented power grab that the U.S. Supreme Court should find unlawful.”
“Alaska has some of the most robust environmental permitting requirements in the world ensuring development of critical natural resources occurs side-by-side with protection of human health and the environment,” said Commissioner of the Alaska Department of Environmental Conservation Jason Brune. “Congress intended Alaska to have primary responsibility over land and resource management decisions under the Clean Water Act’s framework of cooperative federalism. EPA robbed us of this opportunity.”
Like the State’s environmental permitting processes, “Alaska’s Title 16 permitting process is designed to ensure conservation of fish and fish habitat. But these statutory protections were flouted by EPA before Alaska’s expert habitat and fish biologists had the opportunity to weigh in,” according to Alaska Department of Fish & Game Commissioner Doug Vincent-Lang. “The State’s career experts should be allowed to do their job without having Washington bureaucrats swooping in to prohibit an action before we even received a permit application.”
“The Alaska Statehood Compact and Cook Inlet Land Exchange were meant to ensure the State of Alaska would have the opportunity to responsibly develop its resources under its robust permitting regime,” said Commissioner of the Alaska Department of Natural Resources John Boyle. “EPA cannot unilaterally ignore these monumental Congressional actions.”
“The State seeks a declaration that the EPA’s veto is unlawful and an order setting it aside and enjoining its enforcement,” the brief requests. “Alternatively, the State seeks damages for a breach of contract and just compensation for a taking.”
- Read the brief to support a bill of complaint (PDF 559KB).
Here’s some reaction to the state’s salvo, starting with a quote from Trout Unlimited Alaska’s director Nelli Williams:
“Alaskans have been unwavering in their opposition to the proposed Pebble Mine because of its well-documented threat to Bristol Bay’s world-renowned salmon fishery. The Governor is ignoring Alaskans and science with this lawsuit. And even more appalling, he is using public funds to prop up out-of-state mining executives at the expense of Alaska’s salmon and all the people who rely on them. It’s anti-Alaskan.”
And here’s a statement from the Bristol Bay Defense Fund:
Tribes, Commercial and Sport Fishers, Conservation Groups Slam the State of Alaska’s SCOTUS Lawsuit Against EPA’s Decision to Veto Pebble Mine
(Dillingham, Alaska) – Today, in a radical “hail Mary,” legal maneuver, the State of Alaska filed a lawsuit before the U.S. Supreme Court challenging the U.S. Environmental Protection Agency’s (EPA) final determination for the Pebble deposit. In doing so, the State ignores long established procedural rules regarding challenges of agency actions.
Earlier this year, EPA issued 404(c) Clean Water Act protections to end the threat of the Pebble Mine due to the adverse risks it poses to Bristol Bay’s waters and the surrounding ecosystem.
In response the Bristol Bay Defense Fund issued the following statement:
“In filing this lawsuit with the U.S. Supreme Court, the State of Alaska has completely disregarded the available avenues of judicial review to challenge a federal agency action by appeal through the federal courts. The lawsuit is legally and factually unjustified –and is little more than a publicity stunt filed on behalf of an unscrupulous mining company, Pebble Limited Partnership, that has repeatedly misrepresented its record and misled regulators, its investors, Congress, and the general public. The EPA’s authority to protect Bristol Bay under the Clean Water Act stands on an extensive and robust scientific and technical record that spans two decades and three presidential administrations. Alaskans and people across the country overwhelmingly support EPA’s action to protect Bristol Bay, and do not support the Pebble Mine. We will continue to defend Bristol Bay against the threat of the Pebble Mine and the State’s legal antics as long as necessary to ensure that the region, Tribes, salmon, and clean water resources are protected forever.”
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Bristol Bay is home to one of the last thriving salmon fisheries in the state of Alaska that sustains the way of life for Indigenous people who have called the region home for thousands of years and are among the last intact and sustainable salmon-based cultures remaining in the world and supports a $2.2 billion dollar annual commercial fishery.
The Bristol Bay Defense Fund is a broad coalition of local, state and national groups representing Bristol Bay Tribes, commercial fishermen, businesses, and conservation nonprofit organizations including the United Tribes of Bristol Bay, Commercial Fishermen for Bristol Bay, Businesses for Bristol Bay, SalmonState, Wild Salmon Center, Native American Rights Fund, and Natural Resources Defense Council.
We’ll update this as necessary.
Update: Here’s Earthjustice with a statement:
Alaska Seeks to Overturn Hard-Won Victory Against Pebble Mine With Unorthodox Appeal to U.S. Supreme Court
Earthjustice reacts to legal filing seeking to overturn EPA determination vetoing the mine
ANCHORAGE, AK — Earthjustice joins with a broad and unified coalition of Tribes, Bristol Bay residents, commercial and sport fishers, environmental organizations, businesses, and many other Americans and Alaskans today to express dismay over a move by the State of Alaska asking the U.S. Supreme Court to overturn a decision made by the U.S. Environmental Protection Agency (EPA) to veto the Pebble Mine under Section 404(c) of the Clean Water Act.
“It’s a highly unusual legal move, and also a highly unpopular one,” said Carole Holley, Earthjustice’s Alaska Regional Office Managing Attorney. “The governor and his administration are working against the wishes of most Alaskans, especially Bristol Bay residents, by continuing to side with the mine developer.”
The EPA’s Final Determination in January was a hard-won victory by all those who have been fighting for decades to stop the Pebble Mine project and was much celebrated in Alaska and nationally.
The veto followed an earlier decision by the Army Corps of Engineers to deny a key permit to the Pebble Mine developers. Collectively, these decisions had been viewed as assurance that the world-famous Bristol Bay region would be protected from the Pebble Mine. Even so, more durable protections are being sought for the Bristol Bay watershed which is critical both to the people of Bristol Bay and of national significance because of its sockeye salmon fishery worth billions of dollars.
The State of Alaska and Governor Dunleavy are largely alone in supporting the mine. Two out of three Alaskans oppose the Pebble Mine and support protections for the area. By challenging the EPA’s Final Determination in court, the State of Alaska is not representing the wishes of most Alaskans or many Americans.
For more information and to contact the Bristol Bay Defense Fund, please email Grace Nolan, grace@team-arc.com.
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