Pebble Mine: Duplicity and Denial to the Bitter End

On September 6, 2022, the U.S. Environmental Protection Agency (“EPA”) concluded the public comment period for its proposal under Clean Water Act section 404(c) to prohibit or restrict development of the Pebble Mine in the Bristol Bay region of southwest Alaska.  The agency has promised its decision on the next step—a Recommended Determination—by December 2, 2022.

By the numbers, the public comment response has been extensive and, once again, overwhelmingly supportive of protecting Bristol Bay.  Over 560,000 comments were submitted in support of EPA action, including over 30,000 from Alaskans—a record number—and 2,500 from Bristol Bay residents.  Over the past decade, the number of public comments submitted to EPA and the U.S. Army Corps of Engineers seeking Clean Water Act protections for Bristol Bay has reached almost 4 million.

There is no question where the public sentiment lies, nor indeed has there been any question for a very long time.  Though Alaska is a mine-friendly state, the Pebble Mine has been opposed for over a decade by an estimated 80 percent of Bristol Bay residents, with 65 to 70 percent of state residents opposed.  Outside of Alaska, there is no more widely condemned mining project anywhere than the Pebble Mine, and there is no possibility that this condemnation will abate.

Pebble’s Response to EPA’s Proposed Determination

Nevertheless, seemingly undaunted by years of financial and permitting failure, the project’s 100 percent owner Northern Dynasty Minerals (and its wholly owned subsidiary the Pebble Partnership) (“Pebble”) submitted comments to EPA that are as tone deaf as ever.  Indeed, in its accompanying September 8, 2022 press statement, Pebble offers a veritable screed of intemperate hyperbole.

It calls EPA’s proposed action a “massive overreach,” “politically motivated,” “legally, environmentally, and technically unsupported,” “wildly speculative,” and “unsupported by any defensible data.”  Claiming that EPA is required by law to demonstrate that its project “will have demonstrable adverse impacts before it can issue a veto” (emphasis added), Pebble asserts that EPA has failed to meet that standard and, in any case, that its action is “premature,” the product of  EPA “bias,” and a violation of the Alaska National Interest Lands Conservation Act’s (“ANILCA”) “no more clause” that “requires congressional approval of any additional parkland in Alaska.”  

Although this time its critique may be more strident in tone, none of these or other claims is new, and all have been previously addressed—repeatedly.  And there is simply no way to square Pebble’s mischaracterization of what EPA has proposed with the scientific record on which the agency’s proposal is actually based. 

In fact, EPA’s administrative record is virtually unprecedented in the extent of its “legal, environmental, and technical support,” replete with “defensible technical data.”  

First, according to Pebble’s own Environmental Impact Statement, the 2020 Pebble Mine plan would destroy 100 miles of streams and 2100 acres of wetlands—an unprecedented scale of harm even though based on a mine plan only one-tenth the estimated scale of the mine development actually planned by Pebble.

Second, recall that this is a project rejected by the Obama, Trump, and Biden Administrations based on extensive, transparent, formal scientific processes, including two scientific peer reviews as part of the previous 404(c) process.  EPA Administrators from the Republican Presidencies of Nixon, Reagan, H.W. Bush, and George W. Bush have condemned the project.  After a four-year permit process, Northern Dynasty’s application was denied by the Army Corps of Engineers under the Trump Administration.  

There is, in short, a longstanding bipartisan consensus against the destructive Pebble Mine based on science.

Third, without attempting to convey the depth of their content here, consider the detailed record-based comments in support of EPA action, based on law and overwhelming scientific support, submitted by numerous groups, including, for example, United Tribes of Bristol Bay (“UTBB”) (representing 80 percent of the region’s residents), Trustees for Alaska (on behalf of a coalition of local, state, and national organizations), the Bristol Bay Native Corporation (“BBNC”) (on behalf of its 11,000 shareholders from the Bristol Bay region), and NRDC (on behalf of our 3 million members and activists).  Group letters, citing the need for EPA action now, were submitted by (1) 122 local, state, national, and international organizations (representing tens of millions of members and supporters); and (2) 450 businesses, trade groups, and chefs (including fishing, recreation, tourism, and food service industries). 

Each of these comments draws from the scientific record developed over the past decade or more by EPA itself, the Army Corps, and scores of independent experts who, across a range of disciplines, have documented the adverse effects and potentially catastrophic harm that the Pebble Mine poses for the region, its world class wild salmon fishery, and the communities and wildlife that it sustains.  The comments urge EPA to take action that will provide lasting protection by prohibiting or restricting the Pebble Mine or other large-scale mining of similar or greater scope or impact.

Like Pebble’s attack on EPA’s administrative record, its other claims, too, are frivolous.  For example:

• Regarding the legal standard of proof, EPA’s burden is not to show that the project “will have demonstrable adverse effects” but that the project is “likely to result in unacceptable adverse effects.”  Over 40 years ago EPA recognized that “absolute certainty is not required. Because 404(c) determinations are by their nature based on predictions of future impacts, what is required is a reasonable likelihood that unacceptable adverse effects will occur . . . .” 
• EPA’s action is not “premature,” since under EPA’s regulations the agency is explicitly authorized to act “whenever” it “has reason to believe after evaluating the information available . . . that an ‘unacceptable adverse effect’ could result.”  Although Pebble has every right to appeal the Army Corps’ permit denial, an appeal does not limit EPA’s independent authority to act under section 404(c).
• The claim that, in this case, EPA has been motivated by “bias” was rejected by the agency’s Inspector General after conducting an investigation requested by Pebble itself.  Pebble eventually disavowed the inquiry as a “whitewash” when the Inspector General concluded that "[b]ased on available information, we found no evidence of bias in how the EPA conducted its assessment of the Bristol Bay watershed, or that the EPA predetermined the assessment outcome.”  
• The claim that EPA’s Proposed Determination amounts to the “unauthorized creation of parkland” is just a red herring since neither EPA nor anyone else has proposed or suggested that the region affected should be designated as “parkland.”  What EPA proposed is, as section 404(c) authorizes, to “prohibit, restrict, or deny” disposal of dredge and fill material within a defined site proposed for large-scale mining by Northern Dynasty—an activity that would cause, within that defined area, “unacceptable adverse effects.”    

Pebble has never conceded the merit of any of these responses.  Indeed, after so many years battling the company’s scheme—through its abandonment by all former major mining partners and at least three Presidential Administrations—it is apparent that there is no imaginable amount of science that will ever persuade Pebble that gouging a massive open pit into the headwaters of the world’s most productive wild salmon fishery could harm the fishery.  Its response to virtually all opposition has consistently been to argue that the opposition, whether community-based advocacy or government action pursuant to statute, is motivated not by science but by politics or bias. 

For Pebble, the only good science, it seems, is science that greenlights its project, but that is not science at all—except perhaps within the confines of the company’s own Dictionary of Deception, were it to compile one, where common language is re-purposed to promote the Pebble Mine.

The Pebble Tapes Revisited

Expecting Pebble to submit the fate of its mining scheme to objective scientific analysis has always been a fool’s errand.  Two years ago today, the infamous Pebble Tapes were released by the non-profit Environmental Investigation Agency (“EIA”), documenting through the words of Northern Dynasty’s own CEO Ronald Thiessen and then Pebble Partnership CEO Tom Collier how the company sought to pull political strings during the years of the Trump Administration—to block EPA’s twice peer-reviewed scientific review process and replace it with a more project-friendly Army Corps permitting process. 

The Tapes also revealed that Pebble’s true mining plan was not in fact the 20-year proposal submitted for permitting and public review in its December 2017 application.  Repeatedly, under the impression they were speaking to potential Chinese investors rather than two undercover investigators, Thiessen and Collier described their actual plan for a 180- to 200-year mine, exponentially larger in scale, vastly more profitable for investors, and inevitably more destructive in its unexamined environmental consequences.  The mine plan ultimately intended, in other words, was not the project submitted for public review in the legally required permit process—a process that Pebble subverted by its duplicitous representations to the Army Corps and to the public of a smaller mine, on the one hand, and to investors of a vastly expanded mine, on the other.        

Collier resigned two days after the Tapes’ release.  But despite his co-equal participation in the secretly video-taped conversations, Thiessen is still in charge, and Pebble’s priority remains a federal permit—a permit with the power to attract either a major mining partner or a buyer that will turn Pebble’s reckless mining scheme into the proverbial pot of gold.  Although the Pebble Tapes were undeniable proof of Pebble’s true intentions, its most recent public comments demonstrate that Pebble has made no meaningful progress in the level of its candor—that Pebble is tone deaf to the bitter end.

The Bristol Bay wild salmon fishery is a national treasure, an essential resource for the people and wildlife of the Bristol Bay region, and the source of over 50 percent of the world’s sockeye salmon.  EPA has the power to protect it once and for all from Pebble and its self-interested obsession with mining profits.  The agency’s Proposed Determination under section 404(c) is a necessary step, dictated definitively by the science, and now is the time for EPA to finish the job.

Now is the time to act.