Pebble Mine 2021 Year in Review: Back to the Future at EPA

Pebble Mine owner Northern Dynasty Minerals never expected its sole asset to be on life support in 2021. It assumed the Trump Presidency would provide a launching pad to permit the widely condemned project and then to attract new investors. But that vision evaporated in the Fall of 2020, with denial of its permit application by the Army Corps of Engineers and the election of a new President who believes in the power of science and the imperative of protecting Bristol Bay. 

For Northern Dynasty, instead of defending a permit, 2021 was consumed by appealing its denial, persuading potential investors that it will prevail, and issuing a series of press releases whose apparent purpose is to persuade the world, against all reason, that its embattled project is still viable. 

But this year, while Northern Dynasty tried desperately to stay afloat, the center of the action—the heart of the progress—has been elsewhere. The focus has been the U.S. Environmental Protection Agency’s authority under section 404(c) of the federal Clean Water Act (“404 (c)”), ultimately culminating in September in the agency’s decision to re-instate the Proposed Determination previously adopted seven years earlier in July 2014. That formal proposal for federal safeguards, which the Trump Administration sought unsuccessfully to withdraw in 2019, would now, if finalized, effectively veto the Pebble Mine once and for all.

Throughout 2021 we saw an extraordinary crescendo of calls for EPA action, a crescendo of support that has brought the Pebble Mine to this remarkable “back to the future” moment. Administrative and legal advocacy, earned and paid media communications, member activism, new economic and technical analysis, and the largest Bristol Bay wild salmon run in history. Each of these factors contributed to EPA’s decision to prioritize a return to the Clean Water Act process that the tribes of Bristol Bay had initiated over a decade before.

Here, briefly summarized, are some of the many highlights of 2021:

• Setting the stage, in December 2020, United Tribes of Bristol Bay (“United Tribes”) and the Bristol Bay Economic Development Corporation released a “Call to Protect Bristol Bay,” detailing a regional vision for long-term protection of Bristol Bay and calling on EPA to veto the Pebble Mine.
• In February 2021, in a letter to then-Acting Administrator Jane Nishida, United Tribes formally requested that EPA take action to protect the region under section 404(c). On February 24, United Tribes followed up its request with a full-page ad in Politico urging President Biden to stop the Pebble Mine and protect Bristol Bay.
• In March and April, that request was seconded by a wide array of stakeholders, including on March 1, 2021 by commercial fishermen, on March 8, 2021 by NRDC, on March 11, 2021 by Representatives DeFazio and Huffman, on April 7 by investors and fund managers representing $105 billion in assets under management, on April 15 by 37 regional, state, national, and international conservation and environmental organizations representing millions of supporters, and on April 26 by 26 entities representing outdoor recreation businesses and hundreds of thousands of American hunters, anglers, and outdoor enthusiasts.
• On May 3, NRDC submitted to EPA a comprehensive memorandum laying out the legal and scientific basis for EPA action under section 404(c) and the reasons why EPA is uniquely situated to protect the region.
• In March, the Bristol Bay Defense Fund released a report by McKinley Research Group quantifying the economic benefits of the Bristol Bay wild salmon fishery. McKinley estimated the annual revenue generated at $2.2 billion and the number of jobs created at 15,000.
• In late April and early May, a broad-based coalition of stakeholders rolled out a major paid media campaign urging EPA to veto the Pebble Mine and permanently protect Bristol Bay. The ads ran in print and digitally in a range of outlets, including the New York Times, the Washington Post, Politico, The Hill, and E&E.
• In June, on an appeal filed by Trout Unlimited, the Ninth Circuit Court of Appeals re-instated the previously dismissed litigation filed by coalition partners challenging the Trump Administration’s illegal withdrawal of EPA’s 2014 proposed determination under section 404(c). This litigation re-set the stage for district court consideration of the legal challenge on its merits.
• In June, the Pedro Bay Corporation approved an agreement with The Conservation Fund to sell a conservation easement over 44,000 acres on the shore of Lake Iliamna, including the infrastructure right-of-way for the Pebble project. This agreement, if completed, would preclude the company’s preferred access to the mine site.
• In July, Alaska’s Department of Fish and Game announced that the Bristol Bay salmon run threatened by the Pebble Mine had reached an all-time high of 64.2 million fish—a number subsequently increased to over 66 million.
• In July, a broad-based coalition rolled out a second wave of major paid media, urging EPA to “Finish the Job”—vetoing the Pebble Mine—that it had begun in 2014. These ads appeared in the New York Times, Washington Post, Politico, and on CNN. In August, the Bristol Bay Defense Fund ran another series of ads on the one-year anniversary of President Biden’s 2020 campaign pledge of opposition to large-scale mining in the Bristol Bay watershed.
• In early September, in a brief four-page filing in federal district court, EPA announced that it would not defend the Trump Administration’s illegal section 404(c) withdrawal and would instead seek a voluntary remand to the agency and reinstatement of the 2014 Proposed Determination.
• In early September, a coalition of Bristol Bay tribal associations and organizations celebrated the sixth anniversary of President Obama’s visit to the Bristol Bay region by publicly re-asserting their immovable opposition to the Pebble Mine and their commitment to permanent protection of the region.
• In mid-September, the Bristol Bay Defense Fund rolled out a third wave of paid ads in the New York Times and Anchorage Daily News thanking EPA for deciding to re-start the process to protect Bristol Bay under section 404(c).
• On October 25, Northern Dynasty issued a Preliminary Economic Assessment (“PEA”) citing the Pebble project’s “strong economics,” calling it an economic “game-changer” that promises billions in revenue for southwest Alaska. On December 1, independent review of that PEA by former Rio Tinto Environment Chief Richard Borden concluded otherwise, calling the project “an exceedingly risky investment” and finding that “it is likely that the project NPV is negative,” potentially losing “hundreds of millions to multiple billions of dollars.”
• On October 29, the federal district court in Anchorage granted EPA’s motion for voluntary remand to the agency, reinstating as a matter of law the 2014 Proposed Determination illegally withdrawn by the Trump Administration.
• In October, United Tribes, the Bristol Bay Native Corporation, the Bristol Bay Native Association, and the Bristol Bay Economic Development Corporation urged EPA to complete the 404(c) process for protection of Bristol Bay by the start of the 2022 fishing season—summer 2022. On November 8, in a letter to EPA, this request was echoed by a coalition of 53 local, state, national, and international organizations representing tens of millions of members and supporters. Simultaneously, the Bristol Bay Defense Fund began airing on CNN a video in support of the request.
• On November 17, EPA announced next steps in its re-opened section 404(c) process for Bristol Bay, including that it plans to replace the existing Proposed Determination with a Recommended Determination by May 31, 2022. EPA’s announcement was greeted enthusiastically by United Tribes, citing the consistency of this schedule with the request of Bristol Bay’s tribal communities.

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2021 was a banner year in the battle for lasting protection of Bristol Bay. As we prepare for 2022, the broad-based coalition of support, led by the people of Bristol Bay, continues to grow, and EPA is moving forward by picking up where it left off in 2014—poised to update and complete its administrative process by summer.

Based on science and recognizing the overwhelming support from Alaskans for 404(c) action, the coming year will offer an unprecedented opportunity to secure, once and for all, the EPA Final Determination that will remove the paralyzing sword of Damocles over the Bristol Bay region and its people that the Pebble Mine has represented for decades.

The Bristol Bay wild salmon fishery and the watershed that feeds it are a national treasure that the Pebble Mine puts at risk. This is a battle that we have always been determined to win. While 2021 brought great progress, 2022 will tell the tale. 

Take action now.