State of Alaska sues EPA over Pebble mine veto, asks Supreme Court to take up the case

WASHINGTON — The state of Alaska is suing the U.S. Environmental Protection Agency over its final determination halting the Pebble mine, and is asking the Supreme Court to hear the case.

Using its authority under the Clean Water Act, in January the EPA issued a rare veto of Pebble — a controversial copper and gold prospect in Southwest Alaska — and future similar mines in a 309-square-mile area in the Bristol Bay region. The move infuriated proponents of the project, including officials in Alaska Gov. Mike Dunleavy’s administration and project developer Pebble Limited Partnership, who called it illegal federal overreach.

Alaska Attorney General Treg Taylor filed a 91-page brief Wednesday that said the EPA “effectively confiscated the land and created a de facto national park contrary to federal prohibition.”

“The EPA’s order strikes at the heart of Alaska’s sovereignty, depriving the State of its power to regulate its lands and waters,” the brief said.

Several Alaska officials, including Dunleavy, supported the filing in statements Wednesday.

“Our constitution is clear: Alaska is responsible for utilizing, developing, and conserving all of the State’s natural resources for the maximum benefit of its people,” Dunleavy said in a Wednesday statement. “Bureaucrats in Washington D.C. are exercising unbridled and unlawful power to choke off any further discussion on this important decision affecting so many Alaskans.”

An EPA spokesperson said the agency is reviewing the filing and did not comment further on the lawsuit.


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John Shively, Pebble Limited chief executive, applauded the lawsuit in a statement. The company has said that it is considering its own legal options.

“From the beginning, the EPA’s preemptive actions against Pebble have been a gross violation of due process and of the promises made to Alaska under the Alaska Statehood Act,” Shively said.

The state is calling on the U.S. Supreme Court to hear its case against the EPA under its original jurisdiction. In cases where states sue the federal government, they can bring their complaints directly to the court, though only a few such cases are heard annually.

Virginia-based law firm Consovoy McCarthy is representing the state in the lawsuit as Supreme Court counsel. Consovoy McCarthy is known for championing conservative causes and has previously contracted with the state under the Dunleavy administration in a dispute with public employee unions.

“The State conducted a competitive procurement process pursuant to Alaska law to select counsel that had Supreme Court practice expertise,” Alaska Department of Law spokeswoman Patty Sullivan said in an email. “Consovoy McCarthy won the contract based on a myriad of factors, including their expertise before the Supreme Court, their familiarity with Alaska issues such as their work on the Sturgeon case, and their fee structure. It is routine for parties wanting to bring a case before the U.S. Supreme Court to get counsel that has that expertise.”

Asked how much the state is paying the firm for its services, Sullivan said she could not immediately provide the contract.

Opponents of Pebble have long argued that the proposed mine threatens to pollute the headwaters of Bristol Bay, which is home to the world’s largest sockeye salmon fishery.

A coalition of groups opposed to the mine called the state’s move a “radical ‘Hail Mary’ ” in a statement Wednesday. Alannah Hurley, the executive director of the United Tribes of Bristol Bay, said the filing is “slap in the face to Bristol Bay” and said tribes “will use every tool at our disposal to protect our waters, our salmon, and our people.”

“Like the Pebble Mine itself, this effort by the Governor will fail,” Hurley said in a statement. “This year was the first fishing season our people could enjoy without the threat of Pebble hanging over our heads. The Governor is once again ignoring the will of Alaskans and legal process by filing an action directly in the Supreme Court.”

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Riley Rogerson

Riley Rogerson is a reporter for the Anchorage Daily News based in Washington, D.C., and is a fellow with Report for America. Contact her at rrogerson@adn.com.