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.