Court rules groups can’t sue over EPA’s boost to Pebble Mine

(Photo by Alaska Region U.S. Fish & Wildlife Service/Flickr)

A day after Gov. Mike Dunleavy met with President Donald Trump in 2019, the Environmental Protection Agency got to work on rolling back Obama-era environmental regulations on Pebble Mine. The move gave the controversial mine project a boost and eventually generated a lawsuit challenging the EPA’s decision.

That legal challenge hit a dead end on Friday, when a U.S. District Court judge ruled that the EPA’s decision is beyond the realm of legal review and can’t be challenged. The ruling finds that the decision to withdraw the protections amounted to an enforcement action that the U.S. Supreme Court has already ruled are protected from legal review.

“The Court has not found any provision … to rebut the withdrawal decision’s presumption of unreviewability,” explained the court ruling. “Plaintiffs protest that ‘EPA cannot ring the alarm that the proposed Pebble Mine could have unacceptable adverse effects …, but then suddenly abandon its concerns without any rational explanation.’ However, the Court interprets the text of the Clean Water Act to commit that decision to the agency’s discretion.”

Without a convincing argument that the withdrawal of the decision didn’t fall under protected enforcement actions, the court wrote it “must grant EPA’s motion to dismiss” the lawsuit.

The ruling also makes no judgement on whether the EPA’s decision to lift the 2014 waterway protections, which mine supporters have called a “presumptive veto,” was justified.

The ruling was applauded by the company pursuing the Pebble Mine project.

“We have long held that the preemptive veto against Pebble was poor public policy and that decisions about the merits of developing a mine at the Pebble Prospect should be made through the traditional permitting process,” said Pebble CEO Tom Collier in a prepared statement. “This decision moves Pebble one step closer to completing its federal permitting process.”

Several lawsuits were brought by Bristol Bay region groups and environmental conservation groups. The ruling can be appealed but no decision has been made on that front, yet.

Trustees for Alaska released a statement representing The Alaska Center, Alaska Community Action on Toxics, Alaska Wilderness League, Cook Inletkeeper, Defenders of Wildlife, Earthworks, Friends of McNeil River, McNeil River Alliance, National Parks Conservation Association, National Wildlife Federation, Natural Resources Defense Council, SalmonState, Sierra Club, and Wild Salmon Center.

“We are committed to protect Bristol Bay’s salmon fishery, communities, people, cultures, and ways of life. Today’s ruling does nothing to change the fact that EPA withdrew its proposed protections for Bristol Bay because of political influence, ignoring its own science, traditional knowledge, and public input. We will work relentlessly to stop this reckless and dangerous project, and call agencies to account every step of the way.”

Why it matters

Lifting of the 2014 regulations coincided with an accelerated permitting process under the U.S. Army Corps of Engineers, which has pushed ahead with the project despite criticism from Alaska’s elected officials and the EPA itself that its process has been faulty and underestimates the impacts on the Bristol Bay fishery.

The Army Corps hasn’t been daunted by the criticism and is pushing to have a final environmental impact statement by the end of the summer, even pushing past concerns that the COVID-19 pandemic are limiting the ability of the public and affected communities to properly engage with the process.

Those concerns have reached Alaska’s Congressional Delegation who at a meeting with the United Fishermen of Alaska earlier this month said they doubted the ability of the Army Corps to be able to handle the Pebble Mine permitting in the middle of a pandemic.

“The Corps is … 100% focused on the pandemic all over the country. And so, their ability to do anything else I think is called into question. And to be honest I do think they should be 100% focused on the pandemic right now,” said U.S. Sen. Dan Sullivan. “I think I speak for the entire delegation that the burden of proof is still very much on the corps to prove that they can develop this project without harming our world class fishery there. You know you see the EPA and other federal agencies calling into question the original work that was done. And they got a lot of questions to answer. And I’m not sure they’re going to be able to answer any questions in the next couple of months.”

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