The Long and Winding Road: EPA Says Yes to Bristol Bay!

In a brief four-page Joint Proposal filed in federal court in Alaska, the U.S. Environmental Protection today took an important step toward permanent protection of one of the world’s greatest wild salmon ecosystems on Earth—and the homeland of the Yup'ik, Dena’ina, and Alutiiq peoples of Bristol Bay.  Calling for a “remand [to the agency] with vacatur,” EPA stated its intention to file a motion later this month that, in lay terms, would undo the Trump Administration’s withdrawal of protections against one of the most widely-condemned development projects anywhere today—the massive open pit gold and copper project called the Pebble Mine—and re-start the process for making protections permanent.

After over a decade of relentless advocacy led by Bristol Bay’s tribes, numerous twists and turns in political and judicial winds, and countless ups and downs in the prospects for the embattled Pebble Mine, the agency’s proposal marks a major step forward for Bristol Bay communities, commercial and recreational fishermen, hunters, conservationists, scientists, businesses, and millions of individuals seeking to persuade EPA, once and for all, to use its authority to impose lasting protections under section 404(c) of the Clean Water Act.

Here’s a quick summary of the history:

The request for 404(c) relief was initially submitted to EPA by six Bristol Bay Tribes in a 2010 petition to stop the Pebble Mine.  In 2014, after completing a multi-year, twice-peer-reviewed scientific risk assessment, EPA granted the petition and proposed safeguards to protect the extraordinarily productive Bristol Bay wild salmon fishery and waters of the region.  But in May 2017, soon after Trump’s inauguration, the agency reversed course, agreeing without scientific basis first to de-rail the process and then, in 2019, to withdraw the process altogether.  Litigation filed by Bristol Bay tribes and others, including NRDC, was dismissed in April 2020, and Trout Unlimited appealed.

Since the Biden Presidency began in January, United Tribes of Bristol Bay and its supporters have carried out an intensive public campaign to get EPA’s 404(c) process back on track.  Through formal communications with the agency and extensive paid media focused on it, the coalition elevated their demand that EPA “keep your promise” by “veto[ing] the Pebble Mine now” and fulfill the pledge made by President Biden.  This demand gained legal urgency when, in June, the U.S. Court of Appeals for the Ninth Circuit ordered the federal district court to re-instate the previously dismissed legal challenge to the Trump withdrawal decision, and the district court promptly requested from the litigants a proposal for further proceedings.  

Rather than defending the Trump Administration’s indefensible withdrawal decision, EPA’s joint proposal—endorsed by all parties—proposes to vacate it.  And while this is big news, to be sure, it is by no means the end of the road. 

So, here’s what happens next:

The Pebble Partnership—the wholly-owned subsidiary of the Pebble Mine’s 100 percent owner Northern Dynasty Minerals (“Pebble”)—isn’t a party to the litigation, but it has recently filed a motion to intervene and can be expected, if given the opportunity, to try to block EPA’s Joint Proposal.  Its likelihood of success in that effort is minimal, however, since EPA, as the administrative decision-maker, has itself proposed to vacate its prior decision, conceding legal error in its withdrawal decision and, by operation of law once that decision is vacated, causing the prior proposed 404(c) safeguards to become effective once again.

Because EPA’s Joint Proposal doesn’t address the process for further administrative proceedings, questions of what process EPA intends to pursue to finalize permanent protections—and on what timetable—remain.  But that process and timetable must be guided by the Administrative Procedure Act and the agency’s own 404(c) regulations, and we hope and expect that EPA will move quickly and transparently to (1) define the scope and nature of the protections required to protect Bristol Bay forever and (2) complete the administrative process by issuing a 404(c) Final Determination.

Whatever the timeline for completing the 404(c) process, Pebble can be expected, yet again, to challenge EPA action and the safeguards that the people of Bristol Bay and their coalition partners have demanded and fought for.  So, remember this:

However long, however winding the road may be to protect Bristol Bay from Pebble or any other irresponsible mining company like it—and for whatever time it may take to prevail in defense of this national treasure—the fight will continue, and NRDC will be there to its successful end.

EPA’s action today, however, is a major step forward, deserving of our thanks and committed support.  From NRDC and its three million members and activists, the agency has both.