U.S. Army Corps of Engineers

The U.S. Army Corps of Engineers is the lead federal agency for permitting the Pebble copper mine project. USACE, however, cannot approve the permits as long as the EPA's determination not to allow mine permitting at the Pebble project remains in effect.

EPA's blockage of Pebble permits prevents USACE from making any changes; Northern Dynasty says this strengthens its lawsuit challenging EPA veto.

Northern Dynasty Minerals Ltd. April 16 announced that after months of successive delays, the U.S. Army Corps of Engineers has ultimately declined to further engage in the remand process related to the denial of permits in 2020, citing issues related to the Environmental Protection Agency's veto of development at Pebble as the primary cause for such a halt.

Following the decades-long ordeal of permitting a mine at the world-class copper deposit in Southwest Alaska, the most recent setback came about from the denial of permits in 2020. After several requests for extensions, USACE has determined that it cannot, at this point, reevaluate the denied permits due to the EPA veto, which effectively prevents the organization from altering its decision while the veto is in effect.

"USACE's appeal remand decision confirms that the EPA's determination is a controlling factor that cannot be changed by a USACE decision maker, and the application is denied without prejudice, regardless of any review of the issues found to have merit," Army Corps of Engineers – Alaska District penned in an April 17 statement on the Pebble Mine permit appeal process.

Northern Dynasty says that it is reviewing the decision of USACE not to engage in the remand process and is determining the next steps regarding the announcement. The company also notes that it feels the USACE decision was made without prejudice and not based on determination from technical issues raised by its appeal.

"This decision by the USACE exposes the fatal vulnerability of EPA's veto of the Pebble project," said Northern Dynasty CEO Ron Thiessen. "The EPA veto rests extensively on findings made in the USACE permit denial, which is itself flawed as pointed out in the remand order."

EPA lawsuits bolstered

Both the state of Alaska and Northern Dynasty have filed lawsuits challenging EPA's decision to place the Pebble project and immediately surrounding area off limits for mining permitting. While this blanket mine-permitting veto remains in place, it seems no further steps can be taken until the agency's decision has been withdrawn.

In addition to challenging the EPA's Pebble permit decision, Alaska and Northern Dynasty have filed takings suits for compensatory damages if the veto is not lifted – which, for the state, is a substantial sum of roughly $700 billion in lost potential.

However, both the state and mining company would prefer to see the veto lifted and the mine permits reevaluated, which they believe would be approved.

"The USACE itself, during its own administrative review process, avoided affirming its permit denial, ordering instead a remand to address some of the erroneous findings which are then relied upon by the EPA in its veto. This is because a number of these critical findings were contradicted by the administrative record," said Theissen. "This leaves them with an unsupportable federal bureaucratic position: The EPA veto rests upon USACE findings in its permit denial which were rebuked by its own internal administrative review; and now USACE refuses to address the critical flaws its own permit denial decision as ordered by its own administrative review because EPA has vetoed the project."

The Northern Dynasty CEO says the company's lawsuit against the EPA veto was made much stronger by the USACE decision to not engage in the remand process as it was ordered to do so by its own administrative review.

"So, our path forward is unchanged," continued Theissen. "Our primary focus remains on removing the EPA veto, either through federal government action or through our existing legal proceedings in conjunction with the State of Alaska. Once the veto is cleared, it opens the way for us to re-engage with the USACE."