Army Corps denies permit for destructive Bristol Bay mega-mine, stunning company that vows to appeal, while Alaskans and opposition coalition focus on long-term protections for Bristol Bay.
For the Pebble Limited Partnership (“Pebble”)—the wholly-owned subsidiary of Pebble Mine owner Northern Dynasty Minerals—2020 was supposed to be, at long last, the year of the permit. Like so many optimistic but ultimately unfulfilled predictions over the years by this embattled Canadian company and its now depleted mining partnership, it didn’t work out that way.
On July 24, 2020, the Army Corps of Engineers released the Final Environmental Impact Statement (“FEIS”) for the Pebble Mine project. It was a day that then-Pebble CEO Tom Collier called “the most significant day in the 15-year history of the Pebble project.” In fact, the FEIS’s release was the point of departure for the latest (and almost certainly the definitive) decline in the fortunes of this ill-fated scheme. Just four months later, Collier was gone, and the Army Corps of Engineers had denied his preposterous project a permit.
It was a fitting conclusion to a tumultuous year, wracked by the Covid-19 pandemic, widespread unrest over racial injustice, and a hotly contested national election campaign more important than any in recent history. Even in the face of this global upheaval, Pebble refused to back away from its relentless drive for a federal permit within the window of opportunity offered by the Trump Administration’s unprecedented tenure of anti-environmental assaults. Under unremitting financial pressure, Pebble maintained a myopic focus, from January and throughout the year, on its federal permit goal, because the company’s hope of attracting a new partner or significant new investors depended on it.
Every request for more time was rejected, every demand for more information was denied, and every objection to the unprecedented pace of this permitting process was ignored. The fix on the permit appeared to be in.
Still, through much of 2020, project opponents saw important signs of promise:
In May, under pressure from Bristol Bay leaders and its supporters, Morgan Stanley—Northern Dynasty’s fourth largest institutional shareholder—reduced its shareholding in the company by 97.3 percent, and by the end of the year even Cantor Fitzgerald—the project’s lead underwriter—had terminated its uncritically bullish research coverage for the project.
In July, the House of Representatives once again approved an appropriations bill that would bar funding for the Army Corps to permit the Pebble Mine.
That same month coalition partners in Alaska, led by United Tribes of Bristol Bay, rolled out a major communications initiative reasserting their undiminished opposition to the mining scheme and demanded that Alaska’s elected congressional delegation take action to defend Bristol Bay’s salmon and its communities from Pebble’s plans.
And through all of this the coalition, with their lawyers and experts, worked day and night in the Army Corps’ administrative process to ensure that everything that could be done would be done to compel the Army Corps to do its job, respect the science, and refuse to grant Pebble the authority that it has so desperately sought.
It wasn’t easy: In late June, for example, a federal Freedom of Information Act request revealed that Pebble and the Army Corps had quietly agreed to a major change in the transportation and infrastructure corridor required for all aspects of the project—switching it from the proposed year-round crossing of Iliamna Lake to a northern land-based route across lands whose owners have adamantly refused access for the project. Literally on the eve of permitting process completion (and just a month before the project’s Final EIS was issued), without public notice or comment—and without securing essential access from landowners—this new route was proposed for designation as the “least environmentally damaging preferred alternative.”
Inexorably, like a juggernaut, the permitting proceeding moved forward on Pebble’s schedule toward release of the Final EIS on July 24th.
Then, one by one , the proverbial wheels began to come off the project:
- In the final days of July, vocal and widely reported opposition emerged from all ends of the political spectrum, from Donald Trump, Jr. (and other prominent Republican friends of the Trump Administration) to Jane Fonda to both Alaska Senators and even, ultimately, to the Army Corps of Engineers.
- In early August Democratic Presidential nominee (and now President-Elect) Biden issued a lengthy statement expressing his opposition to the Pebble Mine and his determination, if elected, to stop it and to protect Bristol Bay permanently. Bristol Bay, he said, “is no place for a mine.”
- In early September, like Kerrisdale Capital’s report in February 2017, stock analysts at J Capital Research issued a financial report on Northern Dynasty and its Pebble project, concluding that the company is “gaslighting investors” with a project that “has no economic viability.”
- On September 21st, undercover videotapes secretly recorded by the DC-based non-profit Environmental Investigations Agency (“EIA”) dealt a virtual death blow to the project’s long suspect integrity, documenting undeniably the underlying fraud of its application for a 20-year mine plan; in fact, as the tapes confirmed, the company’s true intentions have always been for a mine plan of 200 years. Under the company’s actual plan, the environmental consequences of that 200-year mine plan would never be meaningfully examined as, little by little over the years, the initial 20 year mine would be expanded by an order of magnitude.
- These tapes devastated the company and its management, leading to the sudden resignation of Pebble CEO Tom Collier two days after their release—just as he was on the cusp of collecting a $12.5 million bonus due under his contract if a positive Record of Decision and a federal permit could be secured consistent with the company’s accelerated schedule.
But that Record of Decision and permit never materialized:
- In an August 20th letter, the Army Corps delayed permitting and requested that the company submit a new compensatory mitigation plan within 90 days, with a geographic focus entirely within the pristine upper Bristol Bay watershed to address the “significant degradation to aquatic resources” that the Corps concluded the project would cause.
- Both Alaska Senators Murkowski and Sullivan promptly announced their support of the Army Corps’ position—opposing permitting of the project “as proposed”—and, in September and October after release of the EIA tapes, both doubled-down on their opposition, with Sullivan pledging “no Pebble” and Murkowski adopting the widely heard battle cry “wrong mine, wrong place.” In a speech to the Alaska Federation of Natives, she went still further, promising that she will be working “in the next Congress” to develop a plan for “longer term protections for Bristol Bay.”
- In mid-November, the company purported to comply with the Corps’ demand for real mitigation by submitting to the Corps a new plan that, incredibly, it refused even to share with the public.
- In late November leaders of the House Transportation and Infrastructure Committee sent letters to Pebble and the Army Corps requesting information about whether the company had intentionally duped Congress, federal agencies, and the public about the size and scope of the Pebble project.
- Citing the EIA tapes, new class action lawsuits against Northern Dynasty have now been announced, to be filed on behalf of shareholders alleging material misrepresentation and fraud, in violation of federal securities laws.
Then, on November 25th, on the eve of Thanksgiving, the Army Corps stunned Pebble by (1) recognizing the unavoidable damage that this project would cause and, on that scientific basis, (2) issuing a negative Record of Decision and a permit denial. After four years of the polluter-friendly Trump Presidency, at the hands of an infrastructure-friendly permitting agency, Pebble and its parent Northern Dynasty had failed to secure a federal permit for the Pebble Mine.
Northern Dynasty’s financial difficulties—on a precipitous decline for the past decade—took yet another hit on the news. As of December 21st, the company’s share price has dropped almost 87 percent since late July 2020—to $0.32 a share.
Ultimately, after years of determined opposition by the people of Alaska and a broad coalition of supporters around the world, the Pebble Mine proved too destructive, too scientifically indefensible, and too impossible to mitigate even for an agency widely renowned for its consistent record of project approvals. According to the Army Corps, issuance of a permit for this project would be “contrary to the public interest.”
Simply stated, as so many have said for so many years, the Pebble Mine is “the wrong mine in the wrong place.”
Predictably, the battle continues:
Northern Dynasty has promised to appeal before the 60-day period allowed under the regulations expires. If that appeal fails (as we expect it will), the company is certain to challenge the denial in federal court, and we are certain to oppose it. Whatever happens, NRDC is committed not just to defend this permit denial but to continue our advocacy with the Biden Administration to secure protection for the Bristol Bay watershed forever.
And this is the focus of the “Call for Bristol Bay”—a locally-based vision for long-term protection of Bristol Bay. Issued in December 2020 by United Tribes of Bristol Bay, the Bristol Bay Native Association, and the Bristol Bay Economic Development Corporation, the Call (1) urges EPA to use its authority under Section 404(c) of the Clean Water Act to veto the Pebble Mine and (2) calls on Congress to establish a National Fisheries Area in Bristol Bay that would permanently protect the region from large-scale mining development like the Pebble Mine.
This vision is premised on the reality that denial of the permit to Northern Dynasty in 2020 is no guarantee of definitive protection over the long term. To be sure, the denial is a significant setback for Northern Dynasty today, but it will not prevent re-application by Northern Dynasty or the filing of a different application by some other mining company at some future date. To forestall either scenario, NRDC has enthusiastically endorsed the Call for Bristol Bay, and we look forward to working with the Biden Administration to answer it.
While today we celebrate because the Pebble Mine is dead for 2020, make no mistake: The battle against it—this fight for the soul of the Earth—will continue until the Pebble Mine is dead for all time.
Take action now.