The Biden administration wielded a little-used tool on Tuesday to stop the controversial proposed Pebble mine in Southwest Alaska, issuing a final determination under the Clean Water Act to prevent the project from being developed.
The Environmental Protection Agency said the mine would cause “unacceptable, adverse” harm to the valuable Bristol Bay salmon fishery.
Fishermen, tribes and other Pebble opponents hope the decision spells the project’s demise. They celebrated the announcement.
The developer of the copper and gold prospect and the administration of Alaska Gov. Mike Dunleavy have both threatened legal action to reverse the decision, and issued statements strongly opposing the action.
The EPA employed a rarely used clause of the Clean Water Act that allows it to “veto” projects before they’ve completed the federal permitting process. Specifically, the EPA wants to block Pebble or any future similar mine from releasing “dredged or fill material,” essentially rock or gravel used in development, into streams that support the fishery.
[What Alaska leaders, advocacy groups and industries are saying about EPA’s Pebble decision]
The special action has been used sparingly in the past and will trump any final decision from the U.S Army Corps of Engineers, which denied a permit for the mine in 2020. Mine developer Pebble Limited Partnership has appealed that decision, a process that remains underway.
The Pebble project is on state land about 200 miles southwest of Anchorage, near headwaters of Bristol Bay, home to the world’s largest sockeye salmon fishery.
The EPA’s 435-page final determination completes a process that began in 2010 after several tribes in the Bristol Bay region petitioned the agency for help to stop the project from being built.
Agency officials said the decision follows an extensive review of scientific and technical records dating back two decades to show that Pebble’s 2020 development plan, if completed, would destroy about 100 miles of stream that support salmon habitat.
EPA administrator Michael Regan, speaking with reporters on Monday, called the Bristol Bay watershed a “one-of-a-kind ecosystem” that supports valuable jobs and the sustenance of fishing traditions in about two dozen Alaska Native communities in the region.
“This final action demonstrates the Biden administration’s commitment to safeguarding our nation’s indispensable natural resources and protecting the livelihoods of those who so deeply depend on the health and well-being of these magnificent waters,” he said.
The fisheries are worth about $2 billion annually and support about 15,000 jobs and subsistence fishing for Alaska Native communities. The Pebble deposit contains minerals worth hundreds of billions of dollars, and supporters say development there will support the Alaska economy and create many new jobs.
Reaction to the decision was swift and widespread.
Alannah Hurley, head of the United Tribes of Bristol Bay, called the EPA action “historic progress” toward the goal of safeguarding the Bristol Bay watershed. Hurley was included as a speaker during EPA’s Monday call with reporters.
“The EPA has not only restored its commitment to science and law, but truly has listened to the original stewards of this land,” Hurley said.
James Metrokin, chief executive of the Bristol Bay Native Corp., the Alaska Native corporation for the Bristol Bay region that has also opposed Pebble, said the EPA has listened to the voices of residents.
“Today is a great day for Bristol Bay, and one that many thought would never come,” Metrokin said. “While the immediate threat of Pebble is behind us, BBNC will continue working to protect Bristol Bay’s salmon-based culture and economy and to create new economic opportunities across the region.”
The Pebble Limited Partnership maintains that the mine will not harm the fishery. The company on Tuesday called the EPA’s veto effort unlawful and warned that legal action could follow.
John Shively, chief executive for Pebble Limited, said in a written statement that the land around Pebble was chosen by the state for its mineral potential as part of the process that led to statehood in 1959.
“The EPA is 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,” the statement said. “This preemptive action against Pebble is not supported legally, technically, or environmentally. As such, the next step will likely be to take legal action to fight this injustice.”
Likewise, the governor’s office said in a statement that EPA’s decision covers more than 300 square miles of state land and harms the state’s ability to develop its resources.
“EPA’s veto sets a dangerous precedent,” Dunleavy said in the statement. “Alarmingly, it lays the foundation to stop any development project, mining or non-mining, in any area of Alaska with wetlands and fish-bearing streams. My administration will stand up for the rights of Alaskans, Alaska property owners, and Alaska’s future.”
Alaska Attorney General Treg Taylor said Tuesday that the EPA’s decision short-circuits Alaska’s normal process for environmental review and the Corps’ appeals process. He called the EPA action “legally indefensible.”
“Washington’s overstep into the State’s process was unwarranted and should not be allowed to continue,” Taylor said. “As such, the state intends to challenge EPA’s decision. The state presented strong legal and policy arguments outlining why EPA’s decision is wrong and we look forward to meeting EPA in court.”
Alaska’s Republican U.S. senators, who have said they oppose Pebble but don’t support an EPA veto, expressed concern about what the decision might mean for other Alaska projects.
“Today, the Biden administration is doing something different — using a pre-emptive veto, which raises serious legal questions and has the potential to establish a very troubling precedent for resource development on state of Alaska lands,” Sen. Dan Sullivan said in a statement.
Sen. Lisa Murkowski said the final determination should “mark the end of Pebble.”
“To be clear: I oppose Pebble,” she said in a statement. “To be equally clear: I support responsible mining in Alaska, which is a national imperative. This determination must not serve as precedent to target any other project in our state and must be the only time EPA ever uses its veto authority under the Clean Water Act in Alaska.”
Alaska Rep. Mary Peltola, a Democrat, said the decision would prevent development of the Pebble deposit, which she hopes will be comforting news for Bristol Bay residents.
“I also understand that some Alaskans might be disappointed by this decision,” she said in a statement. “To all of you, know that I am committed to our state’s development and to helping local communities build robust economies with good-paying jobs.”
The final determination was signed by Radhika Fox, assistant administrator of water for the EPA. On Monday, she stressed that it does not apply to other resource development projects in Alaska.
“It provides a roadmap for those types of projects that would create these adverse impacts, but does not at all apply to other projects that could potentially be considered and it does not apply to any resource development beyond this one in the state of Alaska,” she said in a briefing with news media.
Regan, the EPA administrator, said the agency has rarely used its veto power. The determination represents the third time in 30 years the agency has taken final actions using the authority. It’s never been finalized in Alaska until now.
Regan told reporters the final determination could face court challenges, but the agency has used “sound science” and created a “strong record” to create the decision.
For years, the mine’s fortunes have been subject to a roller coaster of on-again, off-again decisions.
Exploration at the deposit began in the 1980s. Northern Dynasty Minerals, the small Canadian mineral exploration company that owns Pebble Limited, has pursued the project for about 20 years.
Over the last decade, major mining companies have backed away from the project. In 2020, the project’s standing suffered a blow with the leak of videos that led to the resignation of Pebble Limited’s then-chief executive.
Three straight U.S presidential administrations have blocked the mine’s progress. The EPA initially proposed stopping Pebble in 2014 under President Barack Obama. The mine developer sued, leading to a 2017 settlement agreement under Donald Trump making it so the EPA would step aside and let Pebble pursue a federal permit. The U.S. Army Corps under Trump later rejected that permit application — action that’s now under appeal. Then, about a year ago, the EPA under Joe Biden renewed its effort to halt Pebble after the developer filed a mining plan.
The project has also faced significant public opposition, led by a broad coalition of fishermen, tribal governments and conservation groups. They’ve pointed out that if built, Pebble would be one of the world’s largest open-pit mines, and a spill there would threaten a salmon fishery that has seen record returns of sockeye as many other salmon fisheries struggle for survival.
The agency received more than 582,000 public comments in the lead-up to its final decision. The comments were overwhelmingly against the project, EPA officials have said.
Bristol Bay leaders who have fought Pebble for a generation said in a press conference on Tuesday that they were prepared to legally defend the EPA decision.
They also said the federal government’s final determination does not mark the end of their effort to protect Bristol Bay and prevent development of the Pebble mineral deposit.
Russell Nelson, chair of the Bristol Bay Native Corp., said the region needs a salmon and fisheries preserve that protects every stream. Each one plays a role in Bristol Bay’s large salmon runs, he said.
Hurley, with United Tribes of Bristol Bay, said groups are looking for support from Alaska’s congressional delegation to create additional protections.
“We have over 20 active mining claims throughout the region,” Hurley said. “We do not have salmon habitat prioritized within any of those lands. The EPA action only applies to the Pebble deposit, so we are in dire need of much broader watershed-wide protections.”