Along with the State of Alaska on Thursday suing the federal government over broken contracts relating to western Alaska mining prospects and land exchanges, the Pebble Partnership now is suing the Environmental Protection Agency and the federal government.
“We are filing litigation to fully contest the EPA’s unprecedented and unlawful actions against the Pebble Project,” the company said in a statement. “Since our objections to the politically motivated actions by the EPA have long fallen on deaf ears, we have sued the agency in federal court in Alaska to have our issues fairly and objectively heard,” the company said.
There are two separate litigation actions. In one, filed in the Federal District Court in Alaska, the company seeks to vacate the EPA veto of a development at Pebble.
“This is the main focus of our legal actions. We are confident that the court will vacate the EPA veto and allow permitting of the Pebble project to resume because, as we have previously stated, the veto violated the law and was arbitrary and capricious. The complaint in this action alleges, among many other points, the veto was issued in violation of various federal statutes regarding Alaska’s statehood rights and a land exchange approved by Congress; it was based on an overly broad legal interpretation of EPA’s jurisdiction which has since been over-ruled by the Supreme Court; its geographic scope exceeds that allowed by the statute; it was based on information previously developed by EPA in an illegal preemptive veto process that was designed to reach a predetermined result; and the factual basis stated to support the veto is directly contradicted by the July 2020 Environmental Impact Statement published by the United States Army Corps of Engineers (“USACE”), which is an important part of the administrative record,” said Northern Dynasty, the 100% owner of the Pebble Partnership.
“The EPA has not demonstrated that either the development of the Pebble deposit will have unacceptable adverse effects under Section 404(c), or that there are any impacts to Bristol Bay fisheries that would justify the extreme measures in the final determination (veto),” the company said.
“Whatever authority the EPA may have under section 404(c), the general provision in the Clean Water Act cannot authorize the EPA to take action to block the specific economic activity that was Congress’s express purpose for granting these lands to the State of Alaska under the Cook Inlet Land Exchange,” Ron Thiessen, Northern Dynasty President and CEO, stated. “It cannot authorize the EPA to override the State’s regulatory preferences for the lands, or the State’s preference to allow modest use of some streams and wetlands in the vicinity of the Deposit to facilitate the extraction of the valuable critical minerals. This is just another example of gross EPA overreach of the powers granted to it by Congress.”
“The EPA has long sought to prevent the Pebble Project from having a detailed plan reviewed through the normal permitting process. We have noted throughout that EPA staff have recklessly pursued this attack on fair and due process for the Pebble Project,” the statement said.
In the latest of the EPA’s actions against the Pebble Project, it issued its final decision before the permitting process had concluded. The agency ignored any potential benefits that would come from responsible development of the Pebble deposit. The EPA has also blocked activity on nearly 200,000 acres of Alaska land – land specifically identified for possible mineral development, the company said, echoing the complaint by the State of Alaska.
“The most appropriate place to determine whether the project should advance remains within the regulatory process and without political interference. The USACE initiated an Environmental Impact Statement process for evaluating the Pebble Project and the EPA fully participated in this process as a cooperating agency. The conclusions asserted by the EPA in their veto are in direct contrast with the final EIS for the Pebble Project which clearly indicated the project could be developed without harm to the Bristol Bay fishery.
The company says it has a strong case.
“Not only were the EPA’s actions political and beyond their statutory authority, they fly in the face of the state’s ability to manage its land and resources- a right granted to it under the Alaska Statehood Act and one the state will also aggressively fight to protect,” the statement says.
The company also a “takings case” against the federal government to preserve our ability to seek compensation for a violation of our rights in line with the protections under the Fifth Amendment. There are procedural rules regarding takings cases that made it necessary to get this claim on file at this time.”
