The Environmental Protection Agency on Thursday moved to deal a major blow to the proposed Pebble mine, a large copper and gold prospect in a salmon-rich Southwest Alaska region that has been hotly contested for more than a decade.
Casey Sixkiller, the administrator for the EPA’s Pacific Northwest region that includes Alaska, recommended the agency stop the mine from being built under a rarely employed agency action called a “veto,” setting the stage for a final decision from EPA headquarters by February.
The EPA has said the mine, if built, would be among the world’s biggest open-pit copper mines, and would destroy about 100 miles of stream that support salmon habitat, through the release of “dredged or fill material,” essentially rock or gravel, in the mining area. That would cause “unacceptable adverse effects” to fishery areas in a watershed of “unparalleled ecological value,” the agency has said, supporting its special action.
“If affirmed by EPA’s Office of Water during the fourth and final step, this action would help protect salmon fishery areas that support world-class commercial and recreational fisheries, and that have sustained Alaska Native communities for thousands of years, supporting a subsistence-based way of life for one of the last intact wild salmon-based cultures in the world,” Sixkiller said in a statement Thursday.
Mine opponents have long called for the EPA action, and say it is unlikely to be overturned and could close the door on the project. Those groups celebrated the news on Thursday. Pebble’s developers and its supporters, however, decried the announcement and asserted it would be illegal. The state of Alaska is poised to sue the agency if it finalizes the veto, Republican Gov. Mike Dunleavy’s office said in a statement after Thursday’s announcement.
Alannah Hurley, head of the United Tribes of Bristol Bay, urged the Biden administration in a statement to finalize the decision to veto the project. She and other opponents have argued that pollution from the mine will destroy the fishery.
“After twenty years of Pebble hanging over our heads, the Biden administration has the opportunity to follow through on its commitments by finalizing comprehensive, durable protections for our region as soon as possible,” Hurley said. “We look forward to reviewing the EPA’s Recommended Determination in greater detail to ensure it achieves the goal of protecting our people and region from the threat of the Pebble Mine.”
“Our fishermen were able to deliver 59 million wild sockeye to the market — something that isn’t happening anywhere else in the world,” Katherine Carscallen, director of Commercial Fishermen for Bristol Bay, said Thursday, calling the announcement “an important step towards finalizing urgently needed protections for the region.”
Supporters say the mine can coexist with the fishery without harming it, and that it could open a region of Alaska that contains minerals worth hundreds of billions of dollars, creating new jobs and helping the state’s struggling economy.
In a prepared statement on Thursday, Pebble Limited chief executive John Shively asserted that an EPA veto will be illegal.
“Congress did not give the EPA broad authority to act as it has in the Pebble case,” Shively said. “This is clearly a massive regulatory overreach by the EPA and well outside what Congress intended for the agency when it passed the Clean Water Act.”
Pebble Limited in September warned that legal action may follow if the EPA finalizes the veto.
The EPA action is separate from a decision by the U.S. Army Corps of Engineers in 2020 to reject a permit for the mine under the traditional federal permitting process. The Corps said the mine was not in the public interest. Mine developer Pebble Limited Partnership is appealing that decision. EPA’s decision would overrule any Corps conclusion on the project.
The mine site, located on state land, straddles headwaters of Bristol Bay about 200 miles southwest of Anchorage. It is home to the world’s largest sockeye salmon fishery, worth an estimated $2 billion.
The project has been in the works for decades, after exploration began in the 1980s. Its history has been marked by a roller-coaster ride of events, including attempts to stop it under three U.S. presidents, the leak of videos that led to the resignation of its then-chief executive in 2020, and overwhelming opposition to the project by the public in EPA comment periods.
In a recent comment period, the agency received more than 582,000 public comments on its proposal, said Suzanne Skadowski, an EPA spokeswoman. The comments were overwhelmingly against the project, similar to past EPA comment rounds, she said.
Alaska’s congressional delegation, Republican Sens. Lisa Murkowski and Dan Sullivan, and newly elected Democratic Rep. Mary Peltola, oppose Pebble. Spokespeople with each of the Alaska lawmakers did not immediately respond to requests for comment Thursday evening.
The senators have said EPA intervention is not the right way to stop Pebble, but they supported the permitting process led by the U.S. Army Corps of Engineers, and the Corps’ earlier decision to reject the project.
Gov. Dunleavy has taken multiple actions that support Pebble, including urging the EPA in September not to veto the project.
In the statement on Thursday saying the state intended to sue over EPA’s action, the governor said, “The state of Alaska has the duty, under our constitution, to develop its resources to the maximum in order to provide for itself and its people, so it’s important that any and all opportunities be explored in furtherance of this idea.”
“The recent decision on the Pebble mine, which is solely located on state land, is the wrong decision,” the governor said.
Attorney General Treg Taylor in the statement called the action “legally indefensible,” and said his office would defend Alaska’s rights in court if EPA finalizes the veto.
The state has argued that the federal government conveyed the land to Alaska for this sort of development, in a deal in 1976 that involved the state providing lands that led to the creation of Lake Clark National Park in the region.
The recommendation from Sixkiller will be transmitted to Radhika Fox, an assistant administrator for the Office of Water at the EPA. Fox is expected to make a final decision within 60 days on the veto proposal, said Suzanne Skadowski, a spokeswoman with the agency.
Fox can reject the veto proposal, modify it, or accept it, Skadowski said. The EPA’s Office of Water will review the record on the proposal so far, and other information provided by the Corps and Pebble Limited, including what corrective action the developer might propose to limit harm to the watershed.
The history of EPA’s proposal on Pebble dates back years. In 2014, the agency initially moved to stop the mine under President Barack Obama, proposing to use the same special authority being pursued today.
Pebble Limited at the time had not submitted a plan for approval to the federal government, but several tribes from the Bristol Bay region sought the veto action, concerned the mine would harm the fishery and environment.
That proposed EPA action led to a lawsuit from the developer, and a decision by a federal judge against that proposal, bringing the effort to a halt. In 2017, under President Donald Trump, EPA stepped aside under a settlement agreement between the agency and the developer, allowing Pebble to pursue its project under the federal permitting process.
Under that process, Pebble submitted a development plan for approval to the Corps, leading to the agency’s permit denial, which also came under the Trump administration.
The EPA announced in 2021, under Democratic President Joe Biden, that its special action to potentially veto the project was back on the table.
The agency has taken final actions to use its special veto authority only 13 times in its 50-year history, in an effort to protect important resources. If this action is finalized, it will be a first for Alaska and the Pacific Northwest region that includes Oregon, Washington and Idaho.
Ivy Spohnholz, director of The Nature Conservancy in Alaska, said research by her organization shows that none of the EPA’s 13 final determinations have ever been overturned, indicating that a final veto will very likely be a permanent action stopping the project.
Mike Heatwole, a spokesman with Pebble, said EPA’s “extraordinary action” against Pebble is unusual compared to past EPA vetoes.
”I am not aware of a veto of a project that had not completed (Corps) permitting,” Heatwole said.