Judge Dismisses Pebble Mine Company's Lawsuit Against EPA
By MARY KAUFFMAN
September 30, 2014
The Court granted the motion to dismiss the case challenging the U.S. Environmental Protection Agency's statutory authority to pre-emptively impose development restrictions on the Pebble Project prior to the submission of a proposed development plan. This ruling did not judge the merits of the statutory authority case, it only deferred that hearing and judgment until after a final determination has been made by the EPA.
Pebble Limited Partnership proposes to build a gold and copper mine that would create a pit nearly as deep as the Grand Canyon, the biggest mine of its type in the world, in the headwaters of the world’s greatest salmon fishery.
The EPA proposed restrictions on the development of the site that were undergoing public review. Pebble Limited Partnership and the State of Alaska sued the agency, attempting to halt the process midcourse, before a final decision could be made. On September 26th, Judge H. Russel Holland ruled that the EPA’s public review must be allowed to proceed.
"The ruling today [Friday] relates to timing of our challenge of this pre-emptive authority and in no way decides the underlying issues," said Pebble Partnership CEO Tom Collier. "We remain very confident in the merits of this case. Should EPA finalize its proposed veto restrictions regarding Pebble, we will pursue our claim that EPA lacks statutory authority to do so at that time."
Northern Dynasty's CEO Ron Thiessen stated, "Today's [Friday's] ruling has nothing to do with the merits or legality of our position in this case, and is merely a decision on timing. The court is, in essence, saying until the EPA makes a final decision you haven't been affected. As Tom Collier CEO of Pebble Partnership points out, this decision has simply deferred the case until or if the EPA makes a negative decision on Pebble Project prior to our filing a permit under the Clean Water Act."
Northern Dynasty is a mineral exploration and development company based in Vancouver, Canada. Northern Dynasty's principal asset is the Pebble Project in southwest Alaska.
Earthjustice, representing the conservation organization Earthworks, filed an amicus curiae brief in support of the EPA.
“The court ruled for the public today [Friday], protecting the right of the people to participate in the process to determine how best to be stewards of the land and water,” said Earthjustice attorney Tom Waldo. “This is a victory for those who care deeply about the fate of Bristol Bay and its incomparable salmon runs.”
“We’re pleased to see the court give EPA the green light to complete this vital process to protect the world’s greatest wild salmon fishery,” said Bonnie Gestring of Earthworks. “The science and public are solidly behind it.”
Plaintiffs in this case were Pebble Limited Partnership and Alaska Peninsula Corporation. The State of Alaska was an Intervenor-Plaintiff.
Defendants were the United States Environmental Protection Agency, and Dennis J. McLerran in his official capacity as Regional Administrator of EPA Region 10. The Intervenor-Defendants were the United Tribes of Bristol Bay, and Nunamta Aulukestai, and Natural Resources Defense Council and Bristol Bay Native Corporation, and Trout Unlimited, Inc.
Pebble Partnership holds the mineral claims that comprise the Pebble deposit, which is estimated to contain 80 billion pounds of copper, 5.6 billion pounds of molybdenum, and 107.4 million ounces of gold.
A 2013 study authored by IHS Global Insight, entitled The Economic and Employment Contributions of a Conceptual Pebble Mine to the Alaska and United States Economies found the Pebble Project has the potential to support 15,000 American jobs and contribute more than $2.5 billion annually to the U.S. Gross domestic product (GDP) over decades of production.
The deposit, located in the Bristol Bay Watershed which supports a world class and economically important commercial and sport fishery, .is the largest undeveloped porphyry copper body in the world according to background information provided to the court.
The Pebble Project is located 200 miles southwest of Anchorage on state land designated for mineral exploration and development. It is situated in a region of rolling tundra approximately 1,000 feet above sea-level, 65 miles from tidewater on Cook Inlet and presents favourable conditions for successful mine site and infrastructure development.
The Alaska Peninsula Corporation is the surface estate owner of approximately 400,000 acres of land located in the Bristol Bay Watershed, including lands adjacent to the Pebble deposit. The State of Alaska also owns land in the Bristol Bay Watershed.
The Pebble Limited Partnership filed this suit in U.S. District Court for Alaska on May 22, 2014, seeking an injunction to stop the Environmental Protection Agency’s process to preemptively veto the Pebble Project under Section 404(c) of the U.S. Clean Water Act.
A few days earlier, the U.S. District Court in Alaska released an order on September 24th recognizing that U.S. Environmental Protection Agency had agreed not to take the next step to advance its Clean Water Act Section 404(c) regulatory process with respect to southwest Alaska's Pebble Project until at least January 2, 2015. This order applies to the Federal Advisory Committee Act (FACA) case and also stated that, should the federal court not issue a decision on the Pebble Partnership's preliminary injunction motion prior to January 2, 2015, parties to the litigation would work together in good faith to negotiate an extension to the stay.
The Pebble Partnership still has a second case pending in the federal court in Alaska that charges that EPA has not complied with the Federal Advisory Committee Act (FACA) in preparing the Bristol Bay Assessment study, upon which the Section 404(c) regulatory process is largely based. The Federal Advisory Committee Act case seeks to enjoin EPA from issuing its final veto. Friday's ruling has no bearing on the Federal Advisory Committee Act case.