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EPA's Pebble play is an abuse of power -- with more to come

Paul Jenkins
OPINION: Paul Jenkins argues that the EPA's move to curtail the Pebble mine is bad news for Alaska - and beyond. Marina Cracchiolo/Medill

While the Environmental Protection Agency pursues its dubious war on the proposed Pebble mine project, and the end-justifies-any-means crowd applauds, we should be asking: Which project is next and how far will we allow this federal agency to exceed its lawful authority?

Make no mistake, the EPA’s headlong rush to block Pebble before its developers can submit a detailed development plan to state and federal regulators -- even before the project can be reviewed under the National Environmental Policy Act, even before completion of an environmental impact statement -- is only part of the story.

The agency is engaged in a precedent-setting power grab that, if unchecked, could devastate mining and investment nationwide. It would allow the EPA, with only a secondary role in the permitting process, to usurp powers primarily held by the U.S. Army Corps of Engineers. It could block development over an entire region anytime it sees fit, for any reason it chooses, using questionable “science” and powers never envisioned or assigned to it by Congress under the 404(c) provisions of the Clean Water Act.

U.S. Sen. Lisa Murkowski gets it. When the EPA a few days back proposed stringent restrictions on state-owned land in Bristol Bay that could preclude development of the Pebble prospect, or any other large-scale mine, she said:

“The EPA is being disingenuous in saying that this decision is only going to impact mining in a particular area of Alaska. The EPA is setting a precedent that strips Alaska and all Alaskans of the ability to make decisions on how to develop a healthy economy on their lands. This is a blueprint that will be used across the county to stop economic development.”

It already is happening. The six tribes of Wisconsin’s Chippewa Federation are asking the EPA to initiate a Clean Water Act preemptive veto against the controversial Gogebic Taconite LLC mining project in northern Wisconsin, near Lake Superior, a project that would revive the state’s iron mining industry. In 2013, Wisconsin eased environmental restrictions to make such mining easier.

Gogebic Taconite, it should be noted, has yet to submit a formal permit request to the Corps of Engineers or state officials, but the federation is scheduled to meet Aug. 16 with the EPA.

“Such a request is not unprecedented and is well within your authority,” Mike Wiggins, the Bad River Band of Lake Superior Chippewa chairman, wrote to EPA Administrator Gina McCarthy. The precedent Wiggins refers to, of course, is Alaska.

The EPA justifies its Pebble attack on its highly questionable Bristol Bay watershed assessment -- which failed muster even with the agency’s own peer review panel -- and the Chippewa Federation seeks something similar, a “cumulative effects assessment” of current and potential mining in the Lake Superior Basin.

That sounds suspiciously like the flawed Bristol Bay assessment, triggered, the agency claims, by requests in 2010 from Alaska Natives and fishing interests alarmed by the notion of a huge copper, gold and molybdenum mine in the region. The study encompassed the entire 20,000-square-mile, salmon-rich Bristol Bay watershed.

Despite EPA assertions, emails obtained by Congress, the Wall Street Journal and the Washington Times indicate the decision to block Pebble was made inside the agency, in 2008 -- long before the assessment got under way.

The agency, the newspapers reported, colluded and coordinated with tribal and environmental activists, even coaching them on how to strengthen their case against Pebble.

Under the pressure, mining giants Anglo American and Rio Tinto abandoned Pebble, leaving owner Northern Dynasty Minerals seeking another partner for financial support.

The reports of agency bias sparked a lawsuit by Pebble owner Northern Dynasty, an ongoing investigation by the agency’s inspector general and a congressional probe. The U.S. House Transportation and Infrastructure Committee last week passed legislation to rein in the EPA.

At the heart of the Pebble controversy is this: Should the Bristol Bay watershed that sustains the world’s largest sockeye salmon fishery be protected? Absolutely. The question is whether we will demand that a massive federal agency with incredible power and resources at its disposal follow the law -- or simply allow it to do as it pleases in the name of protecting that fishery.

Those who cheer the EPA’s ardent pursuit of Pebble -- employing lies, iffy science and collusion -- should remember that what government can do to one of us, it can do to any of us.

Then ask, who’s next?

Paul Jenkins is editor of the AnchorageDailyPlanet.com, a division of Porcaro Communications. Jenkins operates separately from work the agency does for clients.

The views expressed here are the writer's own and are not necessarily endorsed by Alaska Dispatch News, which welcomes a broad range of viewpoints. To submit a piece for consideration, email commentary(at)alaskadispatch.com.