Mining lawsuit: Two Alaska Native organizations sue EPA over Pebble denial

Iliamna Natives Limited and the Alaska Peninsula Corporation filed a lawsuit against the Environmental Protection Agency on Monday, alleging the EPA overstepped its authority with its final decision to axe the Pebble Mine project.

Both the State of Alaska and the parent company of Pebble have similar lawsuits filed over the January 2023 final decision, with its preemptive determination under Section 404(c) of the Clean Water Act to prohibit and restrict areas areas in the watershed of Bristol Bay as disposal sites for discharges of dredged or fill material associated with developing the Pebble Deposit or any other similar project on State-owned lands in the area. The logic of the EPA would mean that no mining could take place in the 40,000-square-mile area that is part of the Bristol Bay watershed

“The EPA’s pre-emptive veto was only thought of as legal if you’re bought-and-paid-for by the radical environmentalists and commercial fishing activists who have opposed Pebble for nearly 20 years,” said Rick Whitbeck, Alaska state director for Power the Future. “With lawsuits now filed by the State, the Pebble Limited Partnership and the Alaska Natives who live closest to the proposed mine site, we can hope the courts find in favor of rational thought, sound science and Alaska’s future, and against the fear-over-facts narrative of the anti-Pebble, pro-China and Russia crowd.”

The lawsuit is filed by the Pacific Legal Foundation, a conservative public interest law practice that has fought for private property rights since it began in 1973.

“The EPA doesn’t get to veto any development project it doesn’t like,” said Damien Schiff, attorney at Pacific Legal Foundation who is representing the two organizations that are the plaintiffs. “When Congress wants to give an agency power, it must also give it specific instructions on how and when that power can be used. EPA claims unlimited discretion: that is unconstitutional.”

Both Iliamna and Alaska Peninsula had contracted with Pebble’s parent company Northern Dynasty to provide services to the mining company.

“Those contracts created real opportunities for full employment to villages that had previously been suffering diasporas due to chronic lack of economic opportunities and enabled the village corporations to grow — providing a desperately needed financial lifeline to their communities. The promise of the mine made Iliamna the largest employer in the area and allowed Alaska Peninsula to pay benefits to its shareholders for the first time in years,” Pacific Legal Foundation wrote.

“But then the EPA vetoed the mine project because it claimed that it would have an unacceptable adverse effect on salmon fisheries — a conclusion contradicted by the Army Corps of Engineers’ findings. The EPA claims that Section 404(c) of the Clean Water Act gives it the power to decide what counts as ‘adverse’ or ‘unacceptable’ effects without clearly defining these terms,” essentially giving it a blank check to stop projects that environmentalists don’t like, for whatever reason, the foundation said.

“The Clean Water Act provides a comprehensive permitting regime for the United States Army Corps of Engineers to authorize projects involving the discharge of dredged and fill material into navigable waters. But after setting out standards to govern such permitting, Congress authorized the Environmental Protection Agency to take an end-run around the permitting review process,” the lawsuit stated.

“In so doing, Congress unconstitutionally delegated to EPA the authority to override the CWA’s permitting process virtually whenever the EPA Administrator deems fit,” the lawsuit said. “EPA has now asserted its ‘veto power’ to kill a mining project in Bristol Bay at the Pebble deposit, which is the largest gold- and copper-ore deposit in the world. If EPA had not exercised its unbounded discretion to veto the project, mine development would have continued.”

John Shively, CEO of the Pebble Partnership, said in a statement, “We have local support for the project, and the Final Environmental Impact Statement for Pebble, as published by the U.S. Army Corp of Engineers, describes in detail the many benefits from Pebble including employment, reduction in the cost of living, and significant local tax revenues. It further documents how local fishing permits continue to migrate to non-Alaskans and a high percentage of commercial fishing jobs are held by non-residents.

Those who oppose Pebble have not provided any alternative that would improve the economy of this area, he said:

These two Native Village Corporations understand that the EPA and our opposition care little about their future.”

The case is Iliamna Natives Limited, e al. v. EPA, filed in U.S. District Court for the District of Alaska.