In a ruling issued Thursday in Anchorage, a federal judge ordered the Environmental Protection Agency to cease all work pertaining to its investigation of whether to block development of Alaska’s controversial Pebble Mine. The order, dated December 4, was in the form of a Case Status update that clarified the terms of a preliminary injunction issued by the same judge, H. Russel Holland, Senior Judge for the US District Court in Alaska, on November 24.
The preliminary injunction pertained to a lawsuit filed by the Pebble Limited Partnership against the EPA, alleging that the EPA had used an anti-mine team of experts during its study of the Bristol Bay watershed, thereby prejudicing the process towards what the mining company has called a “pre-emptive veto” of the as yet undeveloped mine. The EPA had begun a multi-step process whereby, under powers granted it by Section 404(c) of the Clean Water Act, it may prohibit dredge and fill activities that would have “unacceptable adverse effects” on fishery areas. The injunction ruled in Pebble’s favor, seeing enough merit in the lawsuit to ask EPA to pause its process; it also requested amendments and clarifications to Pebble’s complaint.
Following the injunction, there was some disagreement over whether the EPA could continue work on the 404(c) process while Pebble revised its complaint and EPA prepared a response. The Pebble Partnership believed all work should cease, while the EPA maintained that they could continue internal work on the process.
Judge Holland sided with Pebble: “Defendants may not,” he wrote, “engage in any activities related to the 404(c) process.” In addition, the order lays out a timetable for moving forward: Pebble will submit an amended complaint by December 19; EPA will file its motion to dismiss by January 23, 2015; Pebble will respond by February 17, followed by another EPA response by March 6, and a hearing to follow.
In a statement, the EPA reiterated that the injunction was only preliminary and that the court had not yet made a ruling. “EPA is complying with the preliminary injunction as set forth in the court's Dec. 4 update,” the statement says. “We are pleased the court set a swift schedule to move forward. We are confident in our case and look forward to a prompt resolution.”
The injunction is the latest chapter in the now decade-long fight over development of the controversial mine. The Pebble deposit, a low-grade copper and gold deposit worth potentially hundreds of billions of dollars, sits amid spawning grounds that feed the legendary Bristol Bay salmon run. It has been the target of a years-long effort by a consortium of Native groups, commercial fishermen, sport fishermen, conservation groups, and other Bristol Bay stakeholders to halt its development.
The EPA’s involvement in Bristol Bay dates back to 2010, when a number of Bristol Bay Native groups and other stakeholders petitioned the agency to take action under section 404(c) of the Clean Water Act to protect the Bristol Bay watershed from the perceived threat of the proposed Pebble Mine. The Agency undertook a three-year study of Bristol Bay, eventually releasing its peer-reviewed Bristol Bay Watershed Assessment in January of this year. In February, it issued notice of its intent to propose protections for Bristol Bay, and in July, it issued the proposal and initiated a public comment period that ended in September. The next phase of the process would be to either recommend moving forward with protection for Bristol Bay or withdrawing the proposal.
The EPA’s “veto” power under Section 404(c) has been infrequently invoked: the process has been initiated only 30 times in the 42 years of the Clean Water Act’s existence, with only 13 of those processes leading to final determinations to block a permit. In the case of Pebble and Bristol Bay, the agency argued, their study showed that such action was merited.
In response, Pebble soon filed three lawsuits. The preliminary injunction remains silent on two of them but saw enough merit in one to call a halt. In a statement issued last week after the preliminary injunction was announced, Pebble CEO Tom Collier called it an important “procedural victory.”
“This means that for the first time EPA’s march to preemptively veto Pebble has been halted,” he said in the statement. “Last,” Collier’s statement concluded, “one criterion that must be met as a prerequisite for a Preliminary Injunction is that we have a ‘likelihood of success on the merits.’ EPA argued strongly that we could not meet that test. The court disagreed and granted the Preliminary Injunction.”
The EPA noted when the preliminary injunction was announced that it is just that—preliminary—and does not represent a decision. “EPA is waiting to see the court’s written order on the preliminary injunction,” the Agency said in a statement at the time. “EPA hopes the litigation is resolved expeditiously so the agency can move forward with its regulatory decision-making.”
And while the injunction represents a rare win for Pebble, the mine’s future prospects remain murky. Beyond the open question of how these suits are eventually decided, the Pebble Partnership currently has no backer after multinational mining company Anglo American pulled out of the project in 2013, followed by Rio Tinto’s divestment of its 19% stake in April of this year, leaving Northern Dynasty, the junior partner, as sole owner. Northern Dynasty has neither the money nor the capacity to develop the mine itself. Adding to the problems, in a statewide referendum on the November ballot, 65% of Alaskan voters approved the so-called Bristol Bay Forever Initiative, which gives the state legislature veto power over Pebble, taking it out of the hands of the state and federal agencies, including the EPA, that usually handle mining permits.
(A version of this story also appears on www.timsohn.com.)