The mining newspaper for Alaska and Canada's North
The mining newspaper for Alaska and Canada's North
Congressmen, others suspect environmental agency's pre-emptive bid to block mine's development may be unlawful, unfair and unwise
Unlawful, unfair and unwise - this is how the leadership of the Pebble Limited Partnership characterized the U.S. Environmental Protection Agency's efforts to detrimentally limit the company's ability to apply for the permits needed to develop a mine at the world-class Pebble copper-gold-molybdenum project in Southwest Alaska during separate speeches delivered Nov. 5.
"It is outrageous that one federal agency would bypass everything else, all the processes, come to a predetermined conclusion that a mine couldn't be built, without any science," Pebble Partnership Chairman John Shively told colleagues during an impassioned presentation at the Alaska Miners Association annual convention in Anchorage. "It is just wrong and very wrong, and we are not going to give up on it!"
Just hours earlier, Pebble Partnership CEO Tom Collier delivered a similar message to the U. S. House Committee on Science, Space, & Technology.
"I believe the actions taken by EPA to be unlawful, fundamentally unfair, and profoundly unwise," Collier testified during a hearing on EPA's predetermined efforts to block the Pebble Mine.
A day earlier, the U. S. House Committee on Oversight and Government Reform released a report that agrees with at least two of Collier's assertions - EPA actions to stop Pebble were unlawful and unwise.
In conjunction with the report, Committee Chairman Jason Chaffetz, R-Utah; Subcommittee on the Interior Chairman Cynthia Lummis, R-Wyoming; and Subcommittee on Health Care, Benefits and Administrative Rules Chairman Jim Jordan, R-Ohio, penned a letter to EPA Administrator Gina McCarthy.
"EPA's actions with respect to Pebble Mine are highly questionable and lacking a legal basis," the Oversight Committee leadership wrote.
Unlawful
The legality of EPA's approach to stopping Pebble is something that is being weighed in a case that the Pebble Partnership has brought against EPA in U. S. District Court for the District of Alaska.
The hopeful copper mine developer alleges that EPA unlawfully worked behind the scenes with lawyers, scientists, non-governmental agencies and other anti-Pebble activists to develop a strategy to use Section 404 (c) of the U.S. Clean Water Act to prevent Pebble from entering the permitting process and then crafted the Bristol Bay Assessment as a basis to carry out the plan.
The Pebble Partnership asserts that the behind-the-scenes collaboration between EPA and the anti-mine groups to devise and execute a plan to keep Pebble out of the permitting process violates advisory committee law and taints the entire process on which the environmental agency is basing its Clean Water Act determination with regards to Pebble.
Based on the evidence available a year ago, District Court Judge H. Russel Holland issued a preliminary injunction that ordered the EPA to halt its efforts to use the CWA Section 404 (c) process to pre-emptively block Pebble from entering the permitting process until the case was settled.
"A preliminary injunction is only granted if a judge believes you have a better than even chance of prevailing," Shively informed the mining crowd gathered in Anchorage.
Further evidence being uncovered during the discovery phase of the trial, as well as documents being rooted out by House Oversight and others seem to increase the odds that EPA will be found guilty of unlawfully conspiring with anti-Pebble groups.
During the Nov. 5 hearing on Pebble, House Committee on Science, Space and Technology revealed new e-mail exchanges that add to the mounting pile of evidence that EPA staffers were helping the anti-Pebble groups draft a petition urging the EPA to review the project under Section 404(c) of the Clean Water Act.
In one such email from April 2009, Phil North, a former Alaska-based EPA biologist, provided the Pebble opposition "suggested edits" to the petition.
"It is really very clear now from the information we have - and we don't have all the information from him - that he (North) conspired with our opposition to get the petition written," Shively surmised.
EPA would later use this petition from "several Bristol Bay Alaska Native tribes, fishers, and other stakeholders" as its justification for initiating its investigation of the potential affects large mines might have on the Bristol Bay watershed, and ultimately protecting the region from the development of the Pebble Mine.
When the House Oversight Committee asked North to testify on the matter, he left the United States and is now believed to be in Australia.
This apparent reluctance to testify has many wondering what the former EPA employee has to hide.
"What is there that made him say to the congressional committees that want to interview him, 'I will not be interviewed, and I am going to (another) country so you are going to drag me out of that country if you do want to?'" Shively queried.
To find out, District Judge Holland has issued a subpoena to bring North to Alaska to fill in blanks left by several years of lost e-mails and other intriguing evidence that includes a pair of encrypted thumb drives left by North that EPA says it lacks the passwords to access whatever information is locked away inside.
Unfair
The Pebble Partnership contends that it is unfairly being prevented from the opportunity to have its plan to develop a mine at Pebble vetted under the federal permitting process established for just that task.
"Just let us have due process," Collier stated.
"There is no environmental harm that will happen, whatsoever, if we are simply allowed to go through the permitting process," he added.
Space, Science and Technology Committee Chairman Lamar Smith, R-Texas, agrees that the Pebble Partnership should be allowed to make its case, and the EPA should not be granted the power to singlehandedly stop projects from entering the permitting process.
"Allowing EPA to proceed in this pre-emptive fashion raises many concerns about the due process that should be afforded to those who apply for permits under the Clean Water Act," the congressman remarked.
Collier admits that developing a world-class copper-gold mine in Southwest Alaska is a tall order, but believes that the Pebble Partnership can design a mine that protects the environment.
"We recognize there are environmental challenges with building a mine in Bristol Bay, but we think we have answers to those, if we just get an opportunity to have that debate," he testified.
Many anti-Pebble advocates contend that the Pebble Partnership has had plenty of time to submit its mine plan for permitting.
Shively had sharp criticism for those that are trying to push the company into permitting before an environmentally sound mine plan is developed.
"We are going to go into permitting on our timeframe," the Pebble Partnership chairman said.
Unwise
The wisdom of EPA's attempt to stop Pebble ahead of the permitting process may come down to the outcome of the various investigations and trials that have sprung up.
Collier informed the House Science Committee that the Pebble Partnership has uncovered documents revealing EPA's over-arching intent in pre-emptively stopping the Pebble Mine.
"They want to be able to zone the watersheds of America," Collier summarized.
EPA discussed this potential expansion of its regulatory reach in a 2010 discussion matrix on blocking Pebble, saying a pre-emptive veto of Pebble permits would "serve as a model of proactive watershed planning" in the United States and listed this assertion in the pro column of the dialogue document.
If EPA prevails, it would certainly be precedent-setting. However, if it is proven that the regulator skirted the law in trying to prevent the Pebble Mine from entering the permitting process, the environmental agency's credibility in judging Pebble in the permitting process could be compromised.
Meanwhile, a growing number of congressional Republicans are calling on EPA to give up on trying to prevent EPA from entering the permitting process.
In its letter to EPA Administrator McCarthy, the House Oversight Committee characterized the agency's actions with respect to Pebble as "highly questionable and lacking legal basis" and said the Clean Water Act provides the regulator with all the tools it needs to analyze any proposal for mining the deposit.
"As such, we urge you to withdraw the proposed 404(c) determination for the Pebble deposit and allow for project proposals in Bristol Bay to undergo the conventional CWA and NEPA (National Environmental Policy Act) processes," the committee wrote.
Over his more than 16 years of covering mining and mineral exploration, Shane has become renowned for his ability to report on the sector in a way that is technically sound enough to inform industry insiders while being easy to understand by a wider audience.
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