Eclipsed by the debate over the Keystone XL pipeline, the battle over the fate of Alaska’s Bristol Bay has been one of the most intense between industry and ecologists of the new century. Today the Environmental Protection Agency appeared to tip the scales in favor of the native Alaskans and environmentalists who had petitioned the agency to use its authority under the Clean Water Act to block a big mine proposed near the bay’s watershed. Formally, the EPA has initiated a process (under section 404c (PDF) of the act) that could lead to restrictions—or even a veto—on any future mining at the site. For the time being, neither a court nor the U.S. Army Corps of Engineers may issue a permit for a mine, and given the findings in its January assessment of the watershed (PDF), it’s difficult to imagine the EPA saying anything but no.
“Extensive scientific study has given us ample reason to believe that the Pebble Mine would likely have significant and irreversible negative impacts on the Bristol Bay watershed and its abundant salmon fisheries,” EPA Administrator Gina McCarthy said in a conference call announcing the move. “It’s why EPA is taking this step forward in our effort to ensure protection for the world’s most productive salmon fishery from the risks it faces from what could be one of the largest open-pit mines on earth. This process is not something the agency does very often, but Bristol Bay is an extraordinary and unique resource.”
Today’s EPA decision is in response to a three-year-old request by nine tribes in the region who had asked the agency to protect the rivers where half of the world’s sockeye salmon spawn. The proposed mine is touted as being worth $300 billion; the fishery generates $480 million in annual revenue. Local salmon runs are also essential to communities where many rely in part, or whole, on wild-caught food for survival. The tribes contend that the mine would pollute the rivers, and the EPA’s January report found that “depending on the size of the mine … 24 to 94 miles of salmon-supporting streams and 1,300 to 5,350 acres of wetlands, ponds, and lakes would be destroyed.”
Kimberly Williams, director of Nunamta Aulukestai, an association of 10 Bristol Bay native tribes and native village corporations, welcomed today’s news. “We are happy with the EPA’s decision to take this crucial step,” she says. “I and more than 30 other Alaskan leaders just came back from Washington to urge the EPA to do so. Now we’re one big step closer to protecting our salmon, our resources and our people from the proposed Pebble Mine.”
On today’s conference call, McCarthy, seeming to anticipate complaints of regulatory overreach, said repeatedly that Bristol Bay was “an extraordinary resource worthy of out-of-the-ordinary protection. … Let me be clear, this decision does not reflect a new approach or policy change at EPA. This is a unique situation.”
The probable reason for her emphasis: The Pebble Partnership, including Vancouver-based Northern Dynasty Minerals (NAK), who holds the mineral rights through a lease, has yet to apply for a permit to build the mine. The EPA is moving preemptively. And Tom Collier, chief executive officer of the Pebble Partnership in Anchorage, says he doubts the EPA has the legal authority to issue a veto before he’s even filed for a permit. Nor is that the only reason Collier calls today’s announcement “insignificant” and “part of a process,” which he expects will ultimately not prevent him from developing the Pebble Mine.
“There are three reasons we’re confident that when we finally file a permit to the [U.S. Army Corps of Engineers], it will be approved,” Collier says. “The first is that not once in the 42 years of the [Clean Water] Act that I’m aware has the EPA vetoed a project when there hasn’t been a permit filed.” Under the National Environmental Policy Act (NEPA), he says, an environment assessment ought to be carried out based on his company’s specific plan.
Second, he says, the EPA’s watershed assessment had 12 peer reviewers, and after reading over the transcripts of their discussions and e-mails, Collier counted 59 times where the reviewers remarked that the document was “inadequate” for a federal agency to rely on for decision-making. “I don’t believe Administrator McCarthy has even read her own report,” he says, implying that if McCarthy had read the report, she’d realize there’s a lack of consensus on its findings.
Finally, the Pebble Partnership has written to the EPA’s Office of Inspector General asking it to investigate the process by which the watershed assessment was carried out: “From [Freedom of Information Act] requests, we have evidence that as many as 10 people within the EPA wanted to kill this project” and made sure the assessment came out negative, Collier says. “The bottom line is that this report had a predetermined result.”
During today’s teleconference, McCarthy explained that the agency has initiated the 404c process 29 times. Thirteen of those 29 times resulted in restrictions of some kind. Only once before has the EPA begun this process before a developer submitted a plan.
“We’re still open to discussion, but after three years, over 1 million public comments, and extensive data, we concluded that the EPA has enough to move forward,” McCarthy said. “We are following the science and the law.”
Collier disagrees: “It’s not just that I doubt [EPA has the authority to preemptively veto a permit]—I’m convinced they don’t.”