Pebble Mine: Conservation Groups Sue Trump Administration

Trump administration violated the law by reversing proposed protections for Bristol Bay, Alaska.

Ryan Peterson

The Pebble Mine is facing legal challenges.

Conservation groups, including NRDC, filed a lawsuit today challenging the U.S. Environmental Protection Agency’s (EPA) illegal withdrawal of a proposed determination that would have placed common-sense restrictions on the Pebble Mine—a colossal gold and copper mine proposed at the headwaters of Bristol Bay’s world-renowned salmon runs.

The lawsuit, filed in federal court in Alaska, challenges EPA’s reversal on the grounds that the agency violated the Clean Water Act and the Administrative Procedures Act. It cites EPA’s decision to ignore science and the law without a rational explanation.

EPA found that a large-scale mine like Pebble could have “unacceptable adverse effects” on the water, fisheries and wildlife of Bristol Bay.  The agency called for the restrictions in 2014, using its authority under Section 404(c) of the Clean Water Act.

EPA reversed course in July 2019—and issued a final decision in August 2019—even after standing by the proposal in 2018, following its receipt of over a million comments, that protections were needed.

The proposed Pebble Mine would threaten the world’s greatest wild salmon fishery that generates $1.5 billion in annual revenue and 14,000 jobs. Salmon have also sustained the subsistence culture of Alaska Natives for millennia.

Today’s lawsuit is based largely on the simple fact that the Trump administration has continually failed to provide a rational basis for its decision making, as the law requires.

Joining NRDC in the lawsuit is Earthjustice, representing Earthworks, and Trustees for Alaska representing The Alaska Center, Alaska Community Action on Toxics, Alaska Wilderness League, Cook Inletkeeper, Defenders of Wildlife, Friends of McNeil River, McNeil River Alliance, National Parks Conservation Association, National Wildlife Federation, SalmonState, Sierra Club, and Wild Salmon Center.

Our lawsuit compliments the legal challenge filed yesterday by the tribal, business, and fishing interests in Bristol Bay.

As Bristol Bay Native Association President and CEO Ralph Andersen noted upon bringing that lawsuit:

“The federal government has a trust responsibility to protect the resources that our cultures depend on, and eliminating the proposed protections violates that responsibility. Today we are here to state clearly that we will not allow this administration to ignore us, our way of life, and the future we have chosen for our region.”

Lindsay Layland, Deputy Director of United Tribes of Bristol Bay, said that “a corrupt political landscape and a few backroom deals have resulted in the illegal withdrawal of peer-reviewed, science-based environmental protections for the world’s most pristine ecosystem and wild salmon habitat. We are calling out the Federal Administration for this wrongdoing, and we will stand with our partners and the people of Bristol Bay in the work to protect our home.”

These lawsuits are just the latest chapter in a decade-long saga over this controversial and dangerous project.

At the express request of Bristol Bay tribes, the Bristol Bay Native Corporation, the commercial and sport fishing industries and others, the Obama EPA initiated a process to protect Bristol Bay, under Section 404(c) of the Clean Water Act. That provision is a rarely used but essential tool allowing EPA to restrict, prohibit, deny, or withdraw the use of an area as a disposal site for dredged or fill material “whenever” the agency determines the discharge will have unacceptable adverse effects on municipal water supplies, shellfish beds and fishery areas, wildlife, or recreational opportunities.

EPA started the 404(c) process only after conducting an extensive scientific assessment of the Bristol Bay watershed to determine the potential impacts of large-scale mining on salmon and other fish populations, wildlife, development, and Alaska Native communities in the region. EPA’s Watershed Assessment found that mining in the region could have significant impacts on fish populations and streams surrounding the mine site. It also found that a tailings dam failure releasing toxic mine waste could have “catastrophic” effects on the ecosystem and region.

Those conclusions were the culmination of three years of data review, scientific analysis, public hearings, peer review, and revision.

But shortly after Trump took office, EPA and Northern Dynasty Minerals (the Canadian-based junior mining company backing the Pebble Mine) settled multiple lawsuits that Northern Dynasty had brought against EPA. The settlement required EPA to consider withdrawing its proposed protections for Bristol Bay.

In July 2017, EPA issued a proposal to consider withdrawing its proposed restrictions.  It received over one million comments—99% of the docket—urging the agency to keep the proposed determination in place.

In January 2018, EPA decided against withdrawing the proposed determination. In keeping the proposed restrictions in place, former EPA Administrator Scott Pruitt said: “Based on [our] review, it is my judgment at this time that any mining projects in the region likely pose a risk to the abundant natural resources that exist there. Until we know the full extent of that risk, those natural resources and world-class fisheries deserve the utmost protection.” [Emphasis added]

But in August 2019—without adequate justification and ignoring its own science—EPA officially reversed course again. It abandoned its own proposed section 404(c) restrictions on the mine, choosing to rely on a woefully deficient permitting process.

From a legal and scientific perspective, the reversal is mind boggling. It came just weeks after EPA submitted comments to the U.S. Army Corps of Engineers highly critical of the draft Environmental Impact Statement (EIS) prepared during the permitting process. EPA wrote that the draft EIS lacks critical information, underestimates risks to water and fish, and does “not contain sufficient information to support a reasonable judgment” that discharges from the proposed Pebble Mine will comply with the Clean Water Act.

EPA’s latest flip-flop came after multiple meetings between Trump and Alaskan Governor Michael Dunleavy. Emerging from a meeting on Air Force One, Governor Dunleavy said the President assured him that he’s “doing everything he can to work with us on our mining concerns.”

This decision prioritizes politics over science. But politics cannot trump the law. That’s why we’re suing to protect the people, fish, and aquatic resources of Bristol Bay from the toxic Pebble Mine.

About the Authors

Taryn Kiekow Heimer

Deputy Director, Marine Mammal Protection Project, Nature Program

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