State files challenge to EPA decision that would halt Pebble mine

Alaska officials filed litigation on Wednesday with the U.S. Supreme Court in an effort to compel the U.S. Environmental Protection Agency (EPA) to issue a Clean Water Act (CWA) permit needed for a Canadian mining company to develop the Pebble mine adjacent to the Bristol Bay watershed.

The state contends that the EPA’s decision to deny a CWA Section 404 permit for discharging dredge or fill materials from the mine into federal water effectively confiscated state property and created a de facto national park.

Alaska Attorney General Treg Taylor said that Alaska must provide for the conservation of all natural resources belonging to the state, including land and waters for the maximum benefit of its people. The state contends that EPA made its final determination under Section 404(c) of the Clean Water Act before the state processes could work through the Pebble project.

The U.S. Supreme Court is currently in its summer recess and would not consider whether to take the case at least until it reconvenes on Oct. 1, and then only if the EPA has entered a response to the state of Alaska’s contentions in its brief.  The dispute over the proposed copper, gold and molybdenum mine has been in progress for more than two decades. Mine proponents contend they can build and operate the mine in harmony with the world’s largest wild sockeye salmon fishery. Opponents say the mine would threaten the environmental health of the Bristol Bay watershed.

The Bristol Bay Defense Fund and Earthjustice responded quickly, critical of the state’s latest litigation in defense of the Pebble Limited Partnership, a subsidiary of Northern Dynasty Minerals, which is itself a subsidiary of Hunter Dickenson — a diversified, global mining group with headquarters in Vancouver, Canada.

In filing this lawsuit, the state “has completely disregarded the available avenues of judicial review to challenge a federal agency action by appeal through the federal courts,” the Bristol Bay Defense Fund said in a statement. The EPA’s authority to protect Bristol Bay under the Clean Water Act stands on an extensive and robust scientific and technical record that spans two decades and three presidential administrations.


“The lawsuit is legally and factually unjustified – and is little more than a publicity stunt filed on behalf of an unscrupulous mining company, Pebble Limited Partnership, that has repeatedly misrepresented its record and misled regulators, its investors, Congress and the general public,” the Bristol Bay Defense Fund said.

“It’s a highly unusual legal move and also a highly unpopular one,” said Carole Holley, regional managing attorney for Earthjustice in Alaska. “The governor and his administration are working against the wishes of most Alaskans, especially Bristol Bay residents, by continuing to side with the mine developer.”

The EPA veto of the CWA permit in January followed an earlier decision by the U.S. Army Corps of Engineers to deny a key permit to the mine developers. Collectively, these decisions had been viewed as assurance that the Briston Bay region would be protected from the Pebble mine, Holley said.

Even so more durable protections are still being sought for the Bristol Bay watershed, which is critical both for the residents of Bristol Bay and of national significance because of its multi-billion-dollar sockeye salmon fishery, she said.