The Environmental Protection Agency has once again killed the Pebble mining project in Southwest Alaska, preemptively banning a project that has been a political football for decades.

The EPA’s Office of Water Assistant Administrator Radhika Fox made the preemptive determination under Section 404(c) of the Clean Water Act to prohibit and restrict the use of certain waters in the Bristol Bay watershed as disposal sites for discharges of dredged or fill material associated with developing what’s known as the Pebble Deposit or any other similar project on State-owned lands in the area. 

“This is another gut-punch from the Biden Administration to Alaskan workers,” said Rick Whitbeck, Alaska state director for Power The Future. “The EPA has again chosen China over America, fear over facts and slimy politics over science with its actions today. They’ve completely ignored Pebble’s clean Final Environmental Impact Statement – issued by the Army Corps of Engineers in 2020 after years of review – noting that the mine and Bristol Bay fishery can co-exist without threat to the salmon.” 

Today’s actions “not only set back the green energy movement they claim to support, it withholds over 300 full-time jobs in an area with some of the highest unemployment in the nation,” Whitbeck said.

The politics of the mine began during the Obama Administration, when the EPA preemptively vetoed the proposed project before agencies even conducted environmental impact studies. Later, the Trump Administration allowed the U.S. Army Corps of Engineers to do an environmental analysis. The Corps found in 2020 that the mine would have no measurable effect on salmon in Bristol Bay. But with Donald Trump Jr. coming out against the mine, the Corps rejected Pebble’s permit in late 2020, after the November election.

The Pebble site, on state land set aside for mining, has the potential to be one of the biggest suppliers of gold and copper. Over $1 billion has been invested in exploration, engineering, and studies throughout the decades.

The EPA’s decision was not unexpected. Sen. Lisa Murkowski immediately released her statement supporting the decision.

“EPA’s final determination should mark the end of Pebble, which was already rejected by the agency in 2020 and does not have the access, permits, financing, public support, or disposal sites needed to proceed. As Senator Stevens once said, it is the ‘wrong mine in the wrong place,’ and does not deserve to move forward—for good reason,” she said.

“To be clear: I oppose Pebble. To be equally clear: I support responsible mining in Alaska, which is a national imperative. This determination must not serve as precedent to target any other project in our state and must be the only time EPA ever uses its veto authority under the Clean Water Act in Alaska,” Murkowski said.

“The Biden administration has now further sealed Pebble’s fate. But they have a responsibility to advance other mining projects in Alaska to help reduce our foreign dependence and prevent looming shortages. Going forward, I expect the President and his team to step up and meet that responsibility,” Murkowski said.

Gov. Mike Dunleavy’s administration had a different response, one that emphasized process and state’s rights:

“EPA’s veto sets a dangerous precedent. Alarmingly, it lays the foundation to stop any development project, mining or non-mining, in any area of Alaska with wetlands and fish-bearing streams,” Dunleavy said. “My Administration will stand up for the rights of Alaskans, Alaska property owners, and Alaska’s future.”

“The State of Alaska has a responsibility to develop its resources to provide for itself and its people,” Dunleavy said. “Alaska does resource development better than any other place on the planet, and our opportunities to show the world a better way to extract our resources should not be unfairly preempted by the federal Government.”

Responding to EPA’s primary concern about protecting the fish and fish habitat, Alaska Department of Fish and Game Commissioner Doug Vincent-Lang said, “Alaska’s Title 16 permitting process would ensure protection of fish and fish habitat in the Bristol Bay area. But these statutory protections have been flouted by EPA, choked off before Alaska’s expert habitat and fish biologists had the opportunity to weigh in.”

“The precedent set by this action will percolate throughout the investment community,” said John Boyle, Alaska Department of Natural Resources Commissioner. “EPA is violating the rights guaranteed by the Alaska Statehood Act through the capricious exercise of its authority, robbing Alaskans of a multi-billion dollar asset on State lands that were specifically selected for their mineral potential without affording the project the predictable, fair, and science-based permitting process that all projects deserve.”

“EPA’s draconian decision—taken under a Biden Administration that so desperately wants to see domestic development of the natural resources needed to support our Nation’s renewable energy goals—is dumbfounding,” said Alaska Department of Environmental Conservation Commissioner Jason Brune. “This decision will drive development not only out of Alaska but out of the country, straight into third world countries where little care is given to environmental protection, environmental justice is non-existent, and child labor is exploited.”

Calling EPA’s decision “legally indefensible,” Attorney General Treg Taylor stated, “The precedent set by this preemptive veto—if valid—should alarm all permit applicants, investors, and States who wish to retain their traditional land- and resource-management authority. If EPA can rely on undefined terms and subjective standards not based in science to short circuit the Corps’ appeals process and the State’s permitting process here—it can do it anywhere.”  

The Governor noted several flaws in the veto’s supporting documents. One is the veto’s prematurity: project plans are still working through the established permitting process, which the Army Corps of Engineers oversee.

At this juncture, Alaska’s State agencies—the Alaska Department of Fish and Game, the Alaska Department of Environmental Conservation, and the Alaska Department of Natural Resources—have not yet weighed in through the State permitting process, the State’s 401 certification process, or through State input as a landowner. 

The veto disregards the Alaska Statehood Act, violates the Clean Water Act, and departs from basic scientific methodology. Of particular concern is EPA’s failure to demonstrate why the Army Corps of Engineers was wrong when it reviewed the same scientific data but arrived at the opposite conclusion—that the proposed mine plan “would not be expected to have a measurable effect on fish numbers or result in long-term changes to the health of the commercial fisheries in Bristol Bay.”

In 2022, the State of Alaska was joined by Arkansas, Idaho, Indiana, Kansas, Kentucky, Louisiana, Montana, Nebraska, South Carolina, Texas, Utah, West Virginia, and Wyoming in a letter of opposition filed concurrently with the Governor’s. “Decisions like these,” the States emphasized, “throw a wild card into the entire 404 permitting process.” 

Additionally, united by a desire for greater predictability in the 404 permitting process, the Western States Water Council, representing 18 states and accountable to the Western Governors’ Association, passed a resolution urging EPA to adhere to established procedure, meaningfully consult with affected States, and adequately document its rationale before exercising the 404(c) veto power, the Governor’s Office said.