Bristol Bay Tribes to EPA: Veto Pebble Mine Now and Forever

As Pebble Limited Partnership reacts to permit denial, shareholder lawsuits, and grand jury subpoenas, Tribes and millions of supporters urge EPA to ensure lasting protection of world’s greatest wild salmon fishery.

United Tribes of Bristol Bay (“UTBB”), representing 15 federally-recognized Tribes and 80 percent of the region’s residents, has formally asked the U.S. Environmental Protection Agency (“EPA”) to veto the destructive Pebble Mine and other large-scale mining in the watershed that feeds the world’s greatest wild salmon fishery. NRDC and a broad coalition of over 270 organizations—and the millions of members and activists they represent—have weighed in forcefully to support that request.

If you’re surprised that the widely condemned Pebble Mine isn’t dead yet, you’re not alone. Maybe you applauded the Army Corps of Engineers’ denial of a federal permit last November, and maybe you joined stakeholders from across the ideological spectrum in celebrating what you assumed was the final nail in the coffin of one of the worst projects anywhere.

You weren’t wrong to celebrate. The permit denial was a victory in a critically important battle that the company never expected to lose. It wasn’t, however, the end of the war. It didn’t achieve the permanent protection that, for more than a decade, the region and its people have demanded and deserve.

Here, in a nutshell, are the reasons why EPA action is essential:

1. Will the Company walk away?
 

No. Northern Dynasty Minerals and its wholly owned subsidiary Pebble Limited Partnership (“Pebble”) aren’t giving up and, short of bankruptcy, likely never will. It’s because they have no other assets—that is, no other reason for being. Their management gets well paid no matter how long the fight goes on, and many of their shareholders have no place else to go, since they’ve already taken a beating on their investment as Northern Dynasty’s stock value has declined from over $21.00 a share ten years ago to around $0.55 a share today.

Pebble has appealed the permit denial and, through public relations, is trying to re-invent itself as an environmentally and socially responsible company whose copper mine is essential to a green energy future. Whether or not it can persuade the Biden Administration to reverse the Trump Administration’s denial—not likely—few will be fooled by its public relations. Northern Dynasty has been trying to find a buyer since 2011, and what happens to the Bristol Bay wild salmon fishery and the communities that depend on it if Pebble is built won’t be their problem.

Meanwhile, according to Northern Dynasty’s latest financial report—filed last week—the company is hanging on by a slender financial thread: It lost another $7,862,750 in the first quarter of 2021, has just $25,114,711 in working capital remaining, owes $6,370,158 to third parties in 2021, and has budgeted $6,400,000 in 2021 for “general corporate purposes” that include appeal of the permit denial, defense against a series of shareholder lawsuits, and “handling” of a grand jury investigation in which both PLP and its former CEO Tom Collier have been subpoenaed. In the event its appeal of the permit denial is unsuccessful, “the Company will be required to re-assess its options for advancing the development of the Pebble Project . . . includ[ing] the submission of a revised permit application.” (Emphasis added.)

In other words, even if its appeal of the permit denial fails, Pebble is already planning its return.

2. Can the Army Corps of Engineers provide lasting protection?
 

No. The Army Corps can’t ensure lasting protection of the Bristol Bay watershed. In contrast to EPA, the Army Corps’ primary role under Section 404 of the Clean Water Act is as the permitting agency for dredge and fill activities. When a permit application is filed, it’s the Corps’ responsibility to review it. Despite its denial of Pebble’s application, the Corps doesn’t have legal authority simply to refuse to consider a new application, whether from Pebble or some other large-scale miner, and it isn’t obligated to reach the same conclusion.

Beyond this division of regulatory authority, there is reason to be concerned about the Corps’ oversight of the NEPA process. Although in denying the Pebble permit the Army Corps ultimately arrived at the only factually and legally defensible conclusion under the Clean Water Act, important flaws dictated by Pebble in the agency’s NEPA review and FEIS—repeatedly challenged by other stakeholders—were allowed and even endorsed by the Army Corps. This acquiescence by the permitting agency to the interests of the applicant was illegal and attests to the need for EPA’s intervention to provide long-term protection for Bristol Bay.

3. Will the State of Alaska protect Bristol Bay from Pebble?
 

No. Alaska Governor Mike Dunleavy and his Administration have consistently supported Pebble and actively facilitated its reckless mining project despite overwhelming opposition from the people of Bristol Bay. The public record reflects that the Governor has allowed Pebble staff members “to draft letters, write talking points, schedule him for meetings on the company’s behalf, provide assurances to potential investors, and even enlist his personal assistance to advocate with President Trump and Vice President Pence for White House political intervention.”

Rather than committing to a fair and transparent permitting process, Governor Dunleavy has been a partner to Pebble, working behind the scenes to elevate the interests of a private company over the people of Alaska. He can’t be relied on for lasting protection of the region.

4. Will the mining industry lose interest absent permanent protection?
 

No. The Pebble deposit still lies at the headwaters of the Bristol Bay watershed. For that reason alone, despite the abandonment of Pebble by a series of global mining companies over the past decade, the region will remain an irresistible temptation not only to Northern Dynasty but to other ill-informed or unscrupulous mine developers intent on exploiting it. As summed up by mining industry expert and former Rio Tinto Head of Environment Richard K. Borden in a declaration submitted to EPA, “it is a virtual certainty that another developer will eventually acquire mining rights to the deposit and attempt to permit and develop it.”

While Northern Dynasty is careful to disavow the certainty of its estimate of the scale of the deposit—classifying it as a “forward-looking statement” to which the company can’t be held—that estimate will remain a powerful magnet for the mining industry. According to Borden, “[w]hile the Corps’ decision has stopped the project for now, it has not eliminated the likelihood of, and extreme risk posed by, future development of the ore body.” Long-term measures imposed by others will be required to protect the area from development.

5. Can EPA provide the permanent protection the Tribes have requested?
 

Yes. Using its authority under section 404(c) of the Clean Water Act, EPA is the federal agency uniquely positioned to provide lasting protection to the Bristol Bay watershed—to this global landscape, its people and their communities, its economy and culture, and its wildlife. The agency’s 2014 Bristol Bay Watershed Assessment and the administrative record compiled by the Army Corps since 2017 in its Pebble permit application review provide a compelling and legally sufficient factual basis for EPA to act.

On that record, EPA must find that, consistent with the words and spirit of 404(c) and the 404(b)(1) Guidelines, “unacceptable adverse effects” to local fisheries, waters, wildlife, and recreational resources will occur in the Bristol Bay watershed as a result of the Pebble Mine or other large-scale mining. Such a finding is also consistent with EPA’s past exercise of its 404(c) authority, because (1) fisheries and other impacts would exceed those EPA has identified in prior proceedings, and (2) the sheer size and scope of Pebble Mine surpasses any other project EPA has previously considered.

During a period in our nation’s history burdened by pervasive political division, the consensus of opposition to the Pebble Mine—driven by its extraordinary risk to an exceptional wild salmon ecosystem—has remained broad-based, diverse, and bipartisan. Indeed, there has never been a mining project—in Alaska or elsewhere—that has sustained the level and diversity of non-traditional bipartisan opposition as this one. As a result, major mining companies and investment firms have abandoned the project or cut ties to its corporate owner, and successive Presidential Administrations from Obama to Trump to Biden have pursued an administrative veto (Obama), denied the permit application (Trump), or voiced their opposition (Biden).

The people of Bristol Bay have lived under the shadow of the Pebble Mine for too long. Because of the project’s unacceptable adverse effects on protected resources and the urgency of the continuing threat of large-scale mining to the region, the time is now for EPA to act on UTBB’s formal request -- to exercise its 404(c) authority and ensure lasting protection of Bristol Bay.

The watershed that feeds Bristol Bay, President Biden has said, “is no place for a mine.”

If you agree, take action now.