Bristol Bay, Alaska is home to the world’s largest spawning grounds of sockeye salmon. The salmon industry in the area brings in around $1.5 billion per year.[i] Bristol Bay is also home to a Native Alaskan population that lives off the land and its wealth of salmon. Yet, the red sockeye salmon is not the only lucrative resource located in this area. An enormous deposit of gold and copper sits underneath the wetlands, streams, and rivulets that weave through this region.[ii] In fact, the copper in Bristol Bay is currently believed to be the largest intact copper deposit in the world.[iii]
In the early 2000s, an outside group began analyzing the feasibility of building a mine to extract Bristol Bay’s gold and copper. Northern Dynasty, a Canadian company, and Anglo American, a British company, entered into a partnership, called the Pebble Limited Partnership, in 2007. They quickly went to work laying the groundwork for a proposed mine they planned to call “the Pebble Mine.” The Pebble Limited Partnership poured at least $450 million into promotion and exploratory drilling in hopes of receiving a permit to construct the mine.[iv] The proposed Pebble Mine would be the largest open-pit mine ever constructed.[v] Open-pit mines excavate the resource from the ground, leaving a large pit, and vast amounts of toxic waste, which is stored and monitored permanently in enormous dams.[vi] The Pebble Limited Partnership has employed geologists and engineers to design the mine, and they have insisted that the mine and the dredge pool would not affect the nearby waters or the salmon.[vii] However, such mines have broken in the past.[viii]
Advocates for the mine speak of the employment opportunities and the economic growth the mine would create. [ix] Opponents to the mine include Native Alaskans, the commercial fishing industry, and conservationists.[x] In 2010, the alliance composed of Pebble Mine opponents petitioned for federal intervention to prevent the permit. They believe that once the Pebble Mine is issued a permit, there will be no way to prevent the mine from being built.[xi] The Environmental Protection Agency (the “EPA”) responded to the petition in 2013, releasing a draft assessment outlining the probable negative ecological impacts of the proposed Pebble Mine. Not long after the assessment was released, EPA administrator Gina McCarthy traveled to Alaska to meet with different stakeholders, and Anglo-American withdrew from the Pebble Partnership.[xii]
On February 28, 2014, the EPA announced an “Intent to Issue Notice of Proposed Determination.” The “Intent to Issue Notice” is the first step in the rarely used 404(c) veto provision of the Clean Water Act.[xiii] Normally, the U.S. Army Corps of Engineers have the authority to issue permits for dredging bodies of water, pursuant to section 404(a) of the Clean Water Act.[xiv] However, Section 404(c) allows the EPA to step in to prevent such a project. The EPA may override the authority of the U.S. Army Corps of Engineers if the EPA “determines a project would have unacceptable adverse effects on fishery areas.”[xv]
The EPA has invoked section 404(c) thirteen times.[xvi] This will be only the second time 404(c) will be used before the filing of a permit application.[xvii] Before the EPA can issue a 404(c) veto, it must run a comment period and make a final determination. The comment period ran from mid-July 2014 to mid-September 2014.[xviii] However, backlash to the EPA’s announcement has stalled the final determination.
Critics of the move are calling it an overreach of the federal government.[xix] Critics also condemn the EPA for acting before it was formally asked to issue the veto. Recently released emails indicate members of the anti-mine advocates groups were in contact with the EPA years before the agency officially became involved in the issue.[xx] The Pebble Limited Partnership views the EPA’s contact with outside groups as unfair influence in a government decision, a violation of the 1972 Federal Advisory Committee Act (FACA).[xxi] The Pebble Limited Partnership sued the EPA, claiming violation of FACA, in September 2014.
In November 2014, District Court Judge H. Russel Holland of Alaska responded to The Pebble Limited Partnership’s claim that the EPA violated FACA. Judge Holland issued an injunction against the EPA and noted that “Defendants may not engage in any activities related to the 404(c) process.”[xxii] The injunction will stand until the court rules on the merits of the case. In the meantime, therefore, any work relating to the EPA’s proposed 404(c) veto to the Pebble Mine project is at a standstill.
What will now happen to the mine project? Northern Dynasty has lost its stronger partner, Anglo American, and another backer, Rio Tinto, pulled out 19% of its investment in April 2014.[xxiii] According to Tim Sohn, “Northern Dynasty has neither the money nor the capacity to develop the mine itself.”[xxiv] Furthermore, in a referendum in for Alaskan voters in November 2014, 65% of Alaskans voted for the Bristol Bay Forever Initiative.[xxv] The Initiative, which was proposed by mine opponents, gives the Alaska legislature the last say in whether the Pebble Mine is permitted.[xxvi] If the legislature decides to allow a permit, it must pass a law stating that a mine built in the Bristol Bay region will not endanger the salmon fisheries.[xxvii]
Will Northern Dynasty give up and go home? Or will it push back, fueled by the economic potential of Bristol Bay’s gold and copper deposits?
Maddy Buck is a General Member on MJEAL. She can be reached at firstname.lastname@example.org
The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.
[i] Svati Kirsten Narula, Is Alaska’s Pebble Mine the Next Keystone XL?, The Atlantic (Mar. 14, 2014, 1:08 PM), http://www.theatlantic.com/politics/archive/2014/03/is-alaskas-pebble-mine-the-next-keystone-xl/284251/
[iv] Frontline, Alaska Gold, PBS (Jul. 24, 2012), available at http://www.pbs.org/wgbh/pages/frontline/environment/alaska-gold/treasure-hunt-the-battle-over-alaskas-mega-mine/.
[viii] Id. In 1985 the dredge pools of a similar, but smaller dam in Italy broke and killed 269 people.
[x] Supra, note 1
[xi] Supra, note 4
[xii] Supra, note 1
[xiii] Bristol Bay,US EPA (Feb. 5, 2015), http://www2.epa.gov/bristolbay.
[xiv] Clean Water Act of 1972 § 404a 33 U.S.C. § 133, found at http://water.epa.gov/lawsregs/rulesregs/cwa/upload/2004_10_21_wetlands_40cfrPart231.pdf.
[xv] See Clean Water Act of 1972 § 404c 33 U.S.C. § 133, found at http://water.epa.gov/lawsregs/rulesregs/cwa/upload/2004_10_21_wetlands_40cfrPart231.pdf. (defining “unacceptable adverse effects” as “impact on an aquatic or wetland ecosystem which is likely to result in significant degradation of municipal water supplies (including surface or ground water) or significant loss of or damage to fisheries, shellfishing, or wildlife habitat or recreation areas.”) ; Supra, note 13.
[xvi] Supra, note 13
[xvii] Joby Warrick, Pebble Mine debate in Alaska: EPA becomes target by planning for rare ‘veto’, The Washington Post (February 15, 20151), http://www.washingtonpost.com/national/health-science/internal-memos-spur-accusations-of-bias-as-epa-moves-to-block-gold-mine/2015/02/15/3ff101c0-b2ba-11e4-854b-a38d13486ba1_story.html.
[xviii] Supra, note 13
[xix] Supra, note 17
[xxii] Pebble 2014 Year in Review, Pebble Watch (Dec. 31, 2014), http://www.pebblewatch.com/index.php/component/blog_calendar/2014.
[xxiii] Tim Sohn, Judge Orders EPA to Halt All Work on Pebble Mine, Huffington Post (Feb. 7, 2015, 5:59 AM), http://www.huffingtonpost.com/tim-sohn/judge-orders-epa-to-halt-_1_b_6278318.html.
[xxvi] Ballotpedia, Alaska Bristol Bay Mining Ban, Ballot Measure 4 (2014), http://ballotpedia.org/Alaska_Bristol_Bay_Mining_Ban,_Ballot_Measure_4_(2014)#Full_initiative_text.
[xxvii] Id. (stating in the initiative that “this authorization shall take the form of a duly enacted law finding that the proposed large-scale metallic sulfide mining operation will not constitute danger to the fishery within the Bristol Bay Fisheries Reserve”).