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By Stephen Lee
Backers of the proposed Pebble Mine in Alaska agreed to pause their lawsuit against the Environmental Protection Agency, a move many are reading as a bid for friendlier terms under the incoming Trump administration.
In 2015, the EPA proposed under the Clean Water Act to limit where the massive mine would be allowed to dispose its waste, in order to protect the nearby Bristol Bay salmon fishery.
In response, the mine’s backers filed suit in a U.S. district court, alleging that the EPA colluded with three federal advisory committees to arrive at a predetermined conclusion that handicapped the proposed gold and copper mine.
On Dec. 30, 2016, however, that litigation came to a temporary end, with both the Pebble Limited Partnership and the EPA agreeing to stay the case until March 30. In a joint motion, the parties said the stay “would serve judicial efficiency and economy so that the parties may continue to pursue ways to resolve this case without the press of litigation” ( Pebble L.P. v. EPA , D. Alaska, No. 3:14-cv-00171, 12/30/16 ).
By punting the case until after Donald Trump’s inauguration, Pebble is banking on more favorable treatment from the new administration, said Mike Heatwole, a company spokesman.
“This is an opportunity for a fair, objective review, not the preemptive one that was undertaken by the current EPA, which we and others viewed as highly biased and predetermined against us,” Heatwole told Bloomberg BNA.
Heatwole further said the EPA’s proposed restrictions on mining waste diposal were too restrictive. He said the mine would provide jobs, economic growth and greater independence from foreign sources of minerals.
During an April 2016 House hearing, Republicans dogged EPA Region 10 Administrator Dennis McLerran with questions about improprieties and unethical behavior at the agency. One of their chief claims was that a former EPA staffer, ecologist Phil North, had helped anti-mining tribes to lobby the agency against the project, before Pebble applied for a permit.
But to Joel Reynolds, a senior attorney at the Natural Resources Defense Council, Pebble was never serious about litigating the case to its conclusion. Instead, he said, the company only wanted to freeze the EPA’s dredging-and-filling proposal while it sought to attract new investors.
“Typically, when you file a case, you try to litigate it to conclusion,” Reynolds told Bloomberg BNA. “Pebble has never shown any desire to do that. This has been nothing but a fishing expedition from day one. I don’t think the company has any prospect of winning this case, and they know it.”
If forestalling the EPA’s work on its Clean Water Act proposal was indeed Pebble’s goal, it was successful: In November 2014, the court granted a preliminary injunction, halting the agency’s work on its proposal until Pebble’s collusion case was resolved.
Heatwole conceded that the company does need new partners in order to move forward.
A House Democratic staffer agreed with Reynolds’ diagnosis, telling Bloomberg BNA that Pebble has never been prevented from filing a permit for its mine plan.
If the EPA of the Trump administration waves the project through and Pebble can find new investors, the mine still faces stiff opposition in Alaska.
In 2014, Alaska voters approved a ballot measure that authorizes the state legislature to stop mining projects in Bristol Bay if they are deemed harmful to local salmon.
Moreover, 90 percent of Bristol Bay residents and nearly 100 percent of commercial fishermen oppose the project, Reynolds said.
The EPA under Trump could, and likely will, derail the watershed assessment and proposed Clean Water Act determination made during the Obama administration. That would leave open the indefinite possibility of future mining in the region, Reynolds said.
“That means that the region will have a Sword of Damocles hanging over its head for years to come,” Reynolds said. “Everyone will have to spend time and resources fighting this project. Pebble Mine is the proverbial 800-pound gorilla. Until it can finally be terminated, there is uncertainty and anxiety and concern among all the people in these communities.”
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