The Proposed Pebble Mine: Too Toxic for Trump?

Posted on April 17, 2018 by Peter Van Tuyn

EPA Administrator Scott Pruitt began his tenure by decrying the so-called “sue and settle” policy approach, where EPA settles lawsuits brought against it in a manner that dictates EPA actions on court-approved deadlines, often well into the future.Observers were therefore somewhat surprised when, two and a half months later, EPA settled a lawsuit brought against it years earlier by the Pebble Limited Partnership (PLP), the want-to-be developers of the proposed Pebble mine in Alaska.  PLP declared victory and touted the settlement as providing it a “clear path” to the permitting process for the proposed mine.

It turns out that Administrator Pruitt himself made the decision to settle this lawsuit.  As reported in media, “[w]ithin hours of meeting with a mining company CEO, the new head of the US Environmental Protection Agency directed his staff to withdraw a plan to protect the watershed of Bristol Bay, Alaska, one of the most valuable wild salmon fisheries on Earth.”

The Pebble ore deposit sits at the headwaters of Bristol Bay, and the region produces roughly half of the world’s commercial sockeye salmon catch, with over 56 million sockeye returning to the Bay’s fresh waters in 2017 alone.  The commercial fishery supports 14,000 full and part time jobs and generates roughly 1.5 billion in annual revenue.  Bristol Bay salmon also support the subsistence lifestyle of area residents, and are one reason why Bristol Bay is a sought-after sport fishing destination.  The Pebble ore deposit is massive, contains low-grade quantities of copper, gold and molybdemum, and also has the potential to produce acid as the ore is disturbed.  It also lies at the headwaters of two of Bristol Bay’s most productive river systems.  In 2014, the EPA found that the mining of the Pebble ore could result in “irreversible” impacts to fish habitat.  EPA thus used its authority under Section 404(c) of the Clean Water Act to propose certain restrictions on the mining of that deposit to protect the salmon fishery.

Notwithstanding the response of the mine developer, a closer look at the settlement reveals that EPA did not abandon its proposed restrictions, but rather only committed to an agency process “to propose to withdraw” them.  Pursuant to the settlement, EPA initiated a public process and held public hearings in Bristol Bay, seeking input on whether to actually withdraw the proposed protections.  In that process, EPA received over one million comments, with over 99% of the comments supporting the proposed restrictions and asking EPA to leave them in place.

In what was called a “surprise reversal” by some observers, in January of this year Administrator Pruitt decided to leave the proposed restrictions in place.  In announcing his decision, Administrator Pruitt stated that “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.”

The result of this decision is that the EPA’s proposed restrictions under Section 404(c) will remain in place as the U.S. Army Corps of Engineers processes PLP’s Section 404 permit application for the mine, submitted by PLP to the Corps in December 2017.  Looking forward, the Corps cannot issue a final permit decision approving the mine unless and until EPA’s concerns are fully addressed. EPA retains the opportunity to finalize its proposed restrictions before the Corps makes its decision.  This leads one to wonder, as did many people from Bristol Bay, whether the proposed Pebble mine is simply “too toxic” for Trump?  

Disclosure:  Bessenyey & Van Tuyn, L.L.C. represents a client that opposes the proposed Pebble mine because of risks to Bristol Bay salmon.

One Certain Thing: Water Should Be Clean

Posted on September 30, 2016 by Peter Van Tuyn

The Environmental Protection Agency’s use of its Clean Water Act 404(c) authority has received a fair amount of attention of late.  Congressional hearings, court cases, media attention and, of course, Erik Fjelstad’s recent ACOEL blog.

EPA used this authority in the Mingo Logan coal mining-related situation after a 404 permit had been issued and the permit-regulated dredge and fill activities had been underway for some time.  There is no doubt, as Erik points out, that uncertainty on the durability of a permit for a continuing dredge or fill activity, whether it be for coal mining or something else, is not ideal.

That said, there should be a way to revisit a permit if the impact of a continuing dredge or fill activity is severe and was not fully appreciated at the time of permitting.  This is one situation that Congress sought to address in 404(c), and, in my opinion, without it, the integrity of the Clean Water Act to achieve its purpose of protecting waters of the United States would be at risk.  Indeed, without such authority, those 404(c) permits for ongoing activities would look a lot like property rights.  At the same time, this is not a common situation:  EPA has finalized only two post-permit 404(c) actions.   

Most common, though still rare, is EPA’s use of 404(c) authority to place restrictions on a 404 permit while the U.S. Army Corps of Engineers is processing a 404 permit application.  In this time window, permit applicants know that there is uncertainty regarding whether and how their projects might go forward.  EPA initiated the 404(c) process 29 times during the Corps’ permitting process, resolved eighteen without need for final 404(c) action, and came to final 404(c) action eleven times. 

The final time window in which EPA can exercise its 404(c) authority occurs before a landowner or project proponent applies for a 404 permit.  In one case EPA was confronted with a landowner who had three parcels of land in the Florida Everglades which he was planning on filling.  As a start, he applied to the Corps for a 404 permit for two of those parcels.  Using its 404(c) authority, EPA precluded the applied-for fill activity on all three parcels.  Additionally, in the Mingo Logan example first introduced above, EPA not only addressed the existing permits in its decision, but noted that no future and similar 404 permits should subsequently be issued for those waters.   

There is also one pending 404(c) action covering this pre-permit time window.  It concerns the headwaters of Bristol Bay, Alaska, where a mining company has explored the copper, gold and molybdenum “Pebble” ore deposit.  This large ore deposit underlies the largest wild salmon fishery in the world, which has supported the subsistence activities and culture of local people for thousands of years, a commercial fishery for over 130 years (in which the 2 billionth fish was caught this summer!), and a “bucket list” sport fishery.  In this instance, EPA has proposed salmon-protective restrictions for 404 permits related to the mining of this ore deposit.   

Should EPA finalize the Bristol Bay-related 404(c) proposal, the mining company could expect to get a 404 permit only if it included EPA’s restrictions.  In this context, the mining company would have certainty before it applies for a 404 permit as to the applicability of those restrictions to its fill activity.  Some have complained that EPA is overreaching in proposing to exercise this authority in advance of a permit application.  For my part, this seems like the most ideal time for all interested parties – local people and the mining company most of all – to find out about such restrictions.

For what it is further worth, EPA has revisited some of those final 404(c) actions to allow for some dredge and fill activities.  And notably, eleven of the thirteen final 404(c) actions occurred during Republican administrations (Reagan – 9, Bush I – 1, Bush II – 1).  So if politics was involved in the actions, it didn’t fit the stereotype.

 

Disclosure:  Bessenyey & Van Tuyn, L.L.C. represents a client that supports EPA 404(c) action to protect Bristol Bay’s wild salmon from the proposed Pebble mine.  

EPA’s Mighty Power

Posted on August 5, 2016 by Eric Fjelstad

In Mingo Logan Coal Company v. EPA, the D.C. Circuit recently upheld EPA’s use of its “veto” authority over an Army Corps of Engineers permit to fill jurisdictional waters for the Spruce Mine in West Virginia.  Section 404(c) of the Clean Water Act provides EPA authority to “deny or restrict the use of any defined area for specification (including the withdrawal of specification).”  This authority was described by the court in Mingo Logan as “a mighty power and its exercise will perhaps inevitably leave a permittee feeling as if the rug has been pulled out from under it.” 

The salient facts in Mingo Logan involved a Section 404 permit for a “mountaintop removal” coal mine.  After a 7-year EIS, the Corps issued the permit in 2006.  EPA expressed reservations with the permit, but communicated to the Corps that it “had no intention of taking [its] Spruce Mine concerns any further from a Section 404 standpoint.”  But times change – and so do administrations – and in 2009 EPA asked the Corps to suspend, revoke, or modify the permit.  After the Corps refused to do so, EPA began the 404(c) process, which led to a final decision in January 2011 to withdraw the specification for two (of three) disposal sites covered under the permit. 

On appeal, Mingo Logan argued that EPA did not consider the company’s sunk reliance costs (a point EPA conceded).  Even though 404(c) does not explicitly denote costs as a factor in EPA’s decision-making, the court stated that an agency “should generally weigh the costs of its action against its benefits.”  Unfortunately for Mingo Logan, the court found that the company had not appropriately raised the issue of reliance costs before EPA or the district court. 

The Mingo Logan decision is a bitter pill for developers, interjecting an additional element of uncertainty into a Section 404 regulatory process that is already challenging and subject to shifting political winds.  As noted at this site, the agencies and courts have struggled with the jurisdictional reach of Section 404 and when a party can challenge the government’s actions.  Key take-aways from Mingo Logan include:

First, 404(c) battles are not for the faint of heart.  EPA has successfully used the authority twelve times since the passage of the CWA.  Every attempt to stop EPA through litigation has ultimately failed. 

Second, Mingo Logan clarifies that a Section 404 permit can be withdrawn years after its issuance.  The decision will serve to undermine confidence in the integrity of the permitting process in the United States. 

Last, Mingo Logan highlights the inherent problems of shared EPA/Corps responsibility.  Defenders of 404(c) will note that this “mighty authority” is rarely used.  Although true, it misses the point that the effects of 404(c) are, in fact, regularly felt by the regulated community.  The ability to say “no” gives EPA significant leverage – behind the scenes -- in the permitting process. 

Query whether we would have a better, and more effective, Section 404 permitting process if all of the authority and responsibility for permitting were vested in a single agency – either the Corps or EPA.