Pebble Mine and EPA’s Veto Authority Under the Clean Water Act

By Cecilia Segal -— October 7 at 9:50 a.m.

Since 2011, the Pebble Limited Partnership (“PLP”) has been attempting to build a large-scale copper and gold mine in the Bristol Bay watershed in southwestern Alaska.[1] The mine proposal includes an open pit mine, a tailings facility, a power generating station, a deepwater port, and substantial transportation infrastructure, and is slated to operate for at least 20–25 years.[2] Though exact design specifications have not yet been determined, the mine is expected to be one of the largest open pit mines in the world.[3] In light of recent developments, however – including a rare move by EPA to invoke its veto authority under § 404(c) of the Clean Water Act – the mine’s future is in serious doubt.

PLP maintains that the project can coexist with the surrounding environment. Many disagree with this contention. The Bristol Bay watershed is a delicate ecosystem, providing spawning grounds for all five species of Alaska salmon and habitat for over 40 species of mammal and 190 species of birds.[4] Most notably, the watershed is home to the world’s largest sockeye salmon run.[5] The watershed also supports subsistence activities for 25 communities of Alaska Natives [6]; the Native village of Newhalen, for example, averages a 700 pound per capita harvest each year.

With so much at stake, the mine has understandably attracted a great deal of controversy. Indeed, the opposition has expanded beyond the traditional environmental organizations to include celebrities like Robert Redford and jewelry giant Tiffany’s. Ultimately, petitions from several federally recognized tribes and concerned individuals led the U.S. Environmental Protection Agency (“EPA”) to conduct an assessment of the mine’s potential environmental impacts on the region.

In January 2014, EPA released its final assessment. Following that assessment, EPA issued a Proposed Determination in July 2014 to bar development of the Pebble mine, citing the “high ecological and economic value of the Bristol Bay watershed and the assessed unacceptable environmental effects that would result from such mining.”[7] EPA provided a period for public comment on the proposal and held public hearings throughout Alaska. The author of this blog post attended the hearing in Anchorage on August 12, 2014.

EPA’s Proposed Determination rests on its authority under § 404 of the Clean Water Act (“CWA”). Although the mine would be located on state land, it is nonetheless subject to federal permitting requirements. Specifically, because the mine construction would require a significant amount of dredging, PLP must obtain a permit under § 404 of the CWA. These permits are issued by the U.S. Army Corps of Engineers. Under § 404(c), however, the EPA may prohibit or restrict fill activities if it determines that a project would have an “unacceptable adverse effect” on fishery habitat, including spawning and breeding areas.[8] Though sparingly used – EPA has only taken advantage of this provision on 13 occasions – the D.C. Circuit recently upheld EPA’s “veto” authority in Mingo Logan Coal Company v. EPA.[9]

Here, EPA’s use of the § 404(c) veto unleashed a new flurry of controversy and immediately sparked litigation – particularly because EPA’s actions occurred before PLP had applied for the § 404 permit. On May 22, 2014, for instance, PLP filed suit in federal court, arguing that EPA’s Proposed Determination was a “preemptive veto” and seeking an injunction to halt EPA’s process entirely. But on September 26, 2014, the District Court judge dismissed the suit.[10] Because EPA’s Proposed Determination was not a final agency action, the court held, PLP’s suit was premature.[11]

While PLP intends to challenge EPA’s final determination – which must be issued by February 4, 2015 [12] – the future of the project has been thrown into doubt. A number of factors signal the project’s demise, including significant costs and delays, heated public outcry, a loss of investors, EPA opposition, and a tailings pond breach at a similar mine in British Columbia in August, 2014. Given the project’s “near-moribund state,” it may not be capable of surviving the slew of permit application and review processes it must undergo prior to construction. Such a result would be a significant win for EPA and might encourage more use of its veto authority under § 404(c).