EPA announces new WOTUS amendment

On August 28, the EPA announced a revision to the jurisdictional regulations concerning waters of the United States to conform to the holding in Sackett v. EPA, 598 U.S., decided May 25, 2023.

"[A]s a result of the decision in Sackett invalidating the significant nexus standard, the provision for assessment of streams and wetlands ... is no longer valid ... ."

The Sackett decision potentially impacts the determination of the EPA to permanently block the development of any mineral deposit within a 309 square mile area encompassing the Pebble deposit under its veto authority purportedly contained in section 404(c) of the Clean Water Act.

The Pebble project is one of the largest, if not the largest, known undeveloped copper deposits in the world. Pebble is situated in one of the most remote locations in the United States. It is indisputable that green energy depends upon the availability of massive amounts of copper, whether for electric vehicles or for wind turbines. Furthermore, the land where the Pebble project is situated was conveyed to the State specifically for the purpose of resource development.

Nonetheless, on specious grounds, the Environmental Protection Agency elected to forever foreclose not only the Pebble deposit from development, but also an area tens of miles in every direction.

In the light of the Sackett decision, the State has filed an "original action" in the US Supreme Court ("SCOTUS"), alleging among other things, that the EPA's actions are a taking, a breach of the Statehood Compact and in excess of the agency's legal authority.

Original actions are a special tool that allows the State to sue the federal government directly in the Supreme Court when no other options are reasonably available. Specifically, it allows the State to bypass the Federal District Court and, by extension, the US Court of Appeals to get heard. Original actions are not commonly used, but Alaska has turned to them from time-to-time when the ends of justice require SCOTUS attention.

The crux of the Sackett decision is that waters of the United States must have a surface connection to navigable waters and cannot just be adjacent to them. Sackett, however, is only the most recent of a long string of SCOTUS cases wrestling with the jurisdiction of the EPA and the Army Corps of Engineers under the Clean Water Act.

Time after time, SCOTUS has admonished these agencies to voluntarily circumscribe their ambition, and time after time, they have gone back to the rule book to do a workaround.

The Pacific Legal Foundation, which represented the Sacketts, has for many decades championed the rights of individuals to use their property in reasonable compliance with the law. The Sackett case is just one illustration of their successful advocacy in that regard.

Ironically, this is the second time that PLF has taken the EPA to task on behalf of the Sacketts. In an earlier decision, SCOTUS held that the EPA could not preclude someone from suing the agency when it sat on a decision for an unreasonable length of time.

All Alaskans know that Alaska is different. SCOTUS has repeatedly recognized this to be the case. The administrative state, however, routinely rejects the guidance of SCOTUS and pursues its objectives single-mindedly and without accountability or restraint.

Although it is unlikely to happen, the State's Bill of Complaint Before SCOTUS should be required reading in every public-school civics class in Alaska.

It is articulate, persuasive and extremely well written, literally a model of advocacy that concisely articulates the thesis that Alaska is entitled to develop its resources, not just for the benefit of commercial operators but also for the benefit of the State as a whole and Alaska's southwest region.

The Bill of Complaint goes to great lengths to point out that the area in southwest Alaska where the Pebble project is located was acquired by the State through a land exchange approved by the United States with Cook Inlet Regional Corporation ("CIRI") for nearly 700,000 acres of land that CIRI was entitled to but found unsuitable to meet its needs.

From the land exchange, the United States was able to create the Lake Clark National Park and Preserve, CIRI secured oil and gas rights, and the State received lands that were known to have "enormous" mineral potential.

According to the Bill of Complaint, this was a binding commitment by the United States to allow Alaska to recover the minerals in the acquired land. Therefore, EPA's 404(c) decision was a breach of that contract.

According to the Bill of Complaint, "[t]he EPA's [404(c)] order strikes at the heart of Alaska's sovereignty, depriving the State of its power to regulate its lands and waters."

It is unknown whether EPA's revised jurisdictional amendments will forestall the State's Bill of Complaint. If EPA uses its new, redefined authority to permit the Pebble project to go forward, it might.

On the other hand, given the track record of the EPA and its fellow traveler, the Army Corps of Engineers, it is unlikely that the agencies will concede defeat.

The pendency of the State's claim against the EPA is the best hammer available to advance the Pebble project toward production. Hopefully, SCOTUS will agree.