“The comments we filed today clearly show there is absolutely no justification for the EPA’s actions against the Pebble Project. The EPA’s proposed veto of Pebble is legally, environmentally and technically unsupported. The EPA action is premature and it flies in the face of decades of regulatory precedent for fair and due process for development projects in Alaska and in the nation.
“The EPA’s actions are politically motivated, and in our comments today we spell out just how indefensible this veto process has become. The EPA has made wildly speculative claims about possible adverse impacts from Pebble’s development that are not supported by any defensible data and are in direct contradiction with the facts demonstrated in the USACE’s Final Environmental Impact Statement (FEIS) for the Pebble Project. The FEIS clearly states that Pebble can be developed without harm to the Bristol Bay fishery. Regulations and court precedent specify EPA must establish that development will have demonstrable adverse impacts before it can initiate a veto, and the EPA did not do this. Simply put, EPA’s speculation about impacts is not the same as demonstrating impacts will occur.
“Congress did not give the EPA broad authority to act as it has in the Pebble case. The 404 veto was intended to be narrowly defined and for specific areas. In this case, the EPA has preemptively vetoed 309 square miles (nearly 200,000 acres) of state of Alaska land, an area 66 times larger than any previous 404 veto. In fact, this site prohibition is 23 times larger than the entire mine site footprint. This is clearly a massive regulatory overreach by the EPA and well outside what Congress intended for the agency when it passed the Clean Water Act.
“Perhaps the most egregious aspect of this entire process is the EPA’s blatant dismissal of the significant economic benefits this project could have for the region and for the state without explanation or justification. The EPA gives short shrift to what hundreds, if not thousands, of jobs could mean for the communities around Iliamna Lake. I know from personal experience what jobs mean for Alaska’s smaller, rural communities and for the Alaska Natives who live there. The Final EIS clearly demonstrates the dramatic impact responsible Pebble development could have for these communities. The benefits are indisputable.
“Should the EPA finalize its Pebble veto, there are numerous violations of rights, agreements and laws that profoundly affect the future of Alaska, and these will likely be contested in court. EPA has blatantly ignored the state of Alaska, which is the landowner that specifically selected the Pebble area for its mineral potential. If the EPA finalizes its veto and precludes any development on 309 square miles of Alaska land, it would be violating Alaska’s Statehood Compact and the ‘no-more’ clause of the Alaska National Interest Lands Conservation Act, which requires congressional approval of any additional park land in Alaska. The EPA would also be violating the U.S. Constitution by taking away the State and the project’s legally protected property interests in the mineral rights underlying the land, without any just compensation.
And here’s the NRDC’s response posted today:
There is no question where the public sentiment lies, nor indeed has there been any question for a very long time. Though Alaska is a mine-friendly state, the Pebble Mine has been opposed for over a decade by an estimated 80 percent of Bristol Bay residents, with 65 to 70 percent of state residents opposed. Outside of Alaska, there is no more widely condemned mining project anywhere than the Pebble Mine, and there is no possibility that this condemnation will abate.
Pebble’s Response to EPA’s Proposed Determination
Nevertheless, seemingly undaunted by years of financial and permitting failure, the project’s 100 percent owner Northern Dynasty Minerals (and its wholly owned subsidiary the Pebble Partnership) (“Pebble”) submitted comments to EPA that are as tone deaf as ever. Indeed, in its accompanying September 8, 2022 press statement, Pebble offers a veritable screed of intemperate hyperbole.
It calls EPA’s proposed action a “massive overreach,” “politically motivated,” “legally, environmentally, and technically unsupported,” “wildly speculative,” and “unsupported by any defensible data.” Claiming that EPA is required by law to demonstrate that its project “will have demonstrable adverse impacts before it can issue a veto” (emphasis added), Pebble asserts that EPA has failed to meet that standard and, in any case, that its action is “premature,” the product of EPA “bias,” and a violation of the Alaska National Interest Lands Conservation Act’s (“ANILCA”) “no more clause” that “requires congressional approval of any additional parkland in Alaska.”
Although this time its critique may be more strident in tone, none of these or other claims is new, and all have been previously addressed—repeatedly. Andthere is simply no way to square Pebble’s mischaracterization of what EPA has proposed with the scientific record on which the agency’s proposal is actually based.