Judge tosses anti-Pebble suit against EPA

An attempt to legally force the U.S. Environmental Protection to keep a pre-emptive veto of the Pebble copper mine project active was thwarted in federal court on Friday.

On April 17, Alaska District Federal Judge Sharon Gleason dismissed a case brought by Pebble opposition groups that contested EPA's 2019 decision to withdraw the preemptive veto of the proposed copper-gold-molybdenum mine in Southwest Alaska.

Based on Section 404c of the U.S. Clean Water Act, which is the regulation EPA based its 2014 preemptive veto on, Judge Gleason determined that the decision on whether or not to take action under this section is at "agency's discretion." As such, the anti-Pebble plaintiffs did not have a case.

"Once again, a coalition of anti-Pebble groups, including national environmental groups like the Natural Resources Defense Council, have been proven wrong in their ad hominem attacks on Pebble," said Pebble Partnership CEO Tom Collier. "This time a Federal District Judge in Alaska has ruled that their most recent attack did not even state a cause of action that required review by the court. Therefore, their lawsuit against EPA was dismissed for lack of jurisdiction."

EPA's decision to withdraw the pre-emptive veto, and the court ruling that upholds the agency's right to do so, means the copper-gold-molybdenum mine project can continue to be vetted under the rigorous permitting process under National Environmental Policy Act.

"We have long held that the preemptive veto against Pebble was poor public policy and that decisions about the merits of developing a mine at the Pebble prospect should be made through the traditional permitting process," said Collier.

Staunch opponents to developing a mine at the world-class Pebble copper-gold-molybdenum deposit in Alaska's Bristol Bay region, on the other hand, would have preferred that the project not go under an analysis that could result in permit approvals.

In an effort to stop the permitting before the NEPA process was finalized, Pebble opposition groups filed three lawsuits aimed at forcing EPA to withdraw the withdrawal of its pre-emptive veto. These three suits were later consolidated into the one dismissed by Judge Gleason.

Trout Unlimited, a fish-focused environmental organization that initiated one of the consolidated suits, is disappointed in the outcome.

"Regardless, we remain committed to doing everything in our power to safeguard Bristol Bay," said Nelli Williams, Alaska program director of Trout Unlimited.

In the meantime, the Pebble project is closing in on two major federal permitting milestones, issuance of the final environmental impact statement and record of decision for the proposed mine project.

The Pebble Mine under consideration in the EIS is expected to produce 5.74 billion pounds of copper, 6.4 million ounces of gold, 260 million lb of molybdenum and 32 million oz of silver over a 20-year mine life.

U.S. Army Corps of Engineers, the federal agency charged with leading the Pebble EIS process under NEPA, expects to issue the final EIS and ROD for this proposal by mid-year.

"We firmly believe the project can be developed without harm to the Bristol Bay fishery and for the benefit of the region, especially the communities around Iliamna Lake," Collier said. "Preliminary reports from the Corps of Engineers indicate it can be done responsibly and we look forward their final report this summer."

While a positive ROD would be a major milestone for Pebble, state permitting would still need to be finalized before development of a mine there could begin.

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Shane Lasley, Publisher

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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