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Congress continues to poke at the politically sensitive Pebble mine controversy

WASHINGTON — A hearing about the proposed Pebble mine that was not supposed to be about the Pebble mine highlighted the difficult spot the issue creates for Alaska Republicans in the nation's capital, as it allies several favored constituencies with the much-maligned Environmental Protection Agency.

On Wednesday, lawmakers on the House Natural Resources Committee sought, at times, to make a distinction between Pebble the project and Pebble the symbol of federal overreach.

The hearing Wednesday by the full House Natural Resources Committee was not nominally about the proposed Pebble open-pit mine in Southwest Alaska but instead about the "appropriate role" of the National Environmental Policy Act in the permitting process. But two of four people testifying at the hearing were linked to Pebble: Tom Collier, CEO of Pebble Partnership, and Kimberly Williams, executive director of Nunamta Aulukestai, an anti-Pebble organization that draws from 10 Native village corporations and 10 tribal governments in the Bristol Bay region.

Alaska's sole congressman, Don Young, a Republican and the longest-serving member of that committee, participated mostly on paper. He offered brief opening remarks orally and then left, missing the remainder of the two-hour hearing to attend a subcommittee hearing on commercial space travel. There, he asked a question about the appropriateness of the FAA regulating the industry and then appeared to leave after his five minutes were up.

Young later submitted more comments for the record in writing.

Aware of the scheduling conflict, Young met with Native witness Williams on Tuesday, his spokesman said. There was nothing on his schedule regarding a meeting with the Pebble CEO, Shuckerow said, adding that he didn't think Collier had requested a meeting.

Young's absence came as Williams testified to the committee that the hearing "couldn't come at a worse time, which is why I am here alone," while "the people of my region … are busy filling their nets, smokehouses and freezers with our amazing wild salmon so that they can feed their families during the coming winter months."

Young did not dispute that, saying in a written statement that the hearing "is inconveniently timed for many stakeholders in Alaska who are starting their fishing season" but that he hoped "that the witnesses are able to shed light on this complex issue."

Young submitted that written statement for the record, and it was later provided to Alaska Dispatch News by his office. In it, he said that the hearing was really "meant to examine the actions of the EPA and the Army Corps of Engineers" regarding the NEPA process and that the committee was not there "to debate the pros and cons of Pebble mine or whether the project should ultimately move forward."

"It is my hope that the Committee and our witnesses stay focused on concerns about process as we are not here to debate the merits of individual projects or the politics surrounding them," Young said in his written statement, though he did not voice that opinion in the committee room.

Young did introduce Williams, the anti-Pebble activist, at the start of the hearing, who he said "knows my position on this is that this affects state land. That's very important … and the state is deeply involved in this, and when you take away the rights of the state, without due process, it sometimes is questionable. It's not federal land — there's a difference here," he said, adding that he thinks that the EPA "failed in this process."

The congressman also submitted a letter to the record from sport and fishing groups in Alaska that "support what EPA has done, because I think we ought to hear from that side of the issue too," he said.

Steve Lindbeck, a Democrat who is in the running to challenge Young in this year's general election, sent out statements before and after the hearing complaining that Young did not bring in representatives from Alaska's fishing industry to speak at the hearing, and later noted that Young left after the first 10 minutes of the hearing.

Lindbeck argued that scheduling a committee hearing at the start of salmon season showed ignorance or indifference on Young's part, and that leaving the hearing early was "insulting" and showed that Young "has more important priorities than representing Alaska or giving commercial fishermen a seat at the table."

The letter Young submitted came from a group of people from the region's sport-fishing lodges and guide companies who oppose the Pebble project. They wrote committee chairman Rob Bishop, R-Utah, and Young to lodge a complaint about the committee "giving Pebble proponents … a political stage to promote a mine that Alaskans don't want."

Back in the House Natural Resources Committee, lawmakers sparred over the Obama administration's use of its EPA permitting authority, which Republicans have long argued is used to delay and deny permits for industrial activity.

Technically, the National Environmental Policy Act hasn't played much of a role in the effort to build Pebble mine. It's the law requiring that large projects that have to get construction permits from the federal government first undergo an environmental review. The Pebble project has not undergone a federal environmental assessment yet because it hasn't applied for a federal permit, the action that triggers the review.

A 2013 aerial view of a work camp in the area of the proposed Pebble mine near Iliamna. (Bill Roth/Anchorage Daily News)

Pebble would need a federal permit from the Army Corps of Engineers before beginning operation — a Clean Water Act "404c" permit — since it plans to dig up a lot of earth in a way that could affect waterways and because the process of mining produces tailings, leftover debris from excavated land — in this case, whatever is not gold, copper or molybdenum. Tailings are traditionally held in liquid form in a large, manmade pond secured by a dam, all part of the discharge permit the company would get from the Corps. Prior to federal environmental requirements, mine tailings were often disposed of in the nearest waterway.

But the Clean Water Act also contains a provision that allows the Environmental Protection Agency to effectively veto a Corps permit by revoking approved actions or declaring certain areas off limits, for example. In the case of Pebble, the agency did its own environmental review of the watershed and preemptively declared key areas off limits, effectively vetoing the federal permit for which Pebble had not yet submitted an application.

This is the part of the Pebble dispute that draws the interest of so many non-Alaskan lawmakers in Washington.

Early in President Barack Obama's first term, the EPA took an unprecedented step and revoked an already-issued Army Corps permit for what would have been the largest-ever mountaintop removal coal mine in West Virginia history.

Eventually, a federal appeals court in Washington upheld the agency's move, saying the Clean Water Act, as written, gives the agency the authority to use its veto at any time, including before or after a permit is issued. That raised the hackles of many congressional Republicans, who argue that the "any time" option results in uncertainty that is bad for business.

Since the EPA stretched its legs and proposed a veto of a potential federal permit for Pebble after completing an environmental assessment based on the company's federal financial filings about its plans and other scientific research, many in Congress and in the mining and other industries have raised concerns that the agency is heading in a more restrictive direction.

But changing the law that allowed the EPA to preemptively challenge a permit is a politically untenable step for now, and it falls in a long line of Republican grievances with the use of the Clean Water Act. Nevertheless, the chairman noted at the close of the hearing that this would not be the last word on the issue.

Pebble opponents argue that the EPA did not jump into the fight on its own, but after opposing forces grew weary of waiting for a permit application that never seemed to come.

When Native groups "asked for assistance from the State of Alaska, they ignored our concerns. … We then turned to the EPA for help," Williams testified. "EPA has never told us to wait. EPA took our concerns seriously and started looking at what this massive mine located in our headwaters" could mean for the salmon industry, Williams said.

"Again, all Pebble has to do is file a permit application and it can have the NEPA process it appears to want so badly," Williams said.

Collier argued that the company has not found the right time to do it, and the facts on the ground have shifted since exploration started more than a dozen years ago.

For now, the EPA is holding off on finalizing its proposed veto until legal fights over its actions play out in the courts, and Collier similarly said that EPA's efforts have been reason enough to hold off on a federal permit application.

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