The state of Alaska and the federal government are locking horns over Gov. Mike Dunleavy administration’s bid to have the U.S. Supreme Court hear its lawsuit against the Environmental Protection Agency’s decision to halt the proposed Pebble mine.
A number of groups have joined in the fight, filing briefs to back either side.
Some Alaska Native groups and Trout Unlimited are supporting the U.S. federal government with friend-of-the-court briefs. Those groups are opposed to the copper and gold prospect in Southwest Alaska.
Several pro-development groups and an Alaska Native village corporation, along with mine owner Pebble Limited Partnership, have filed friend-of-the-court briefs to support Alaska.
The Supreme Court could decide some time next month whether it will take up the case, two groups involved in the dispute say.
The agency’s denial of the project effectively trumped the usual regulatory process that’s playing out before the U.S. Army Corps of Engineers. The Corps rejected the mine in 2020, but it agreed to review its decision after Pebble Limited Partnership challenged it.
The Dunleavy administration is trying to take the case directly to the Supreme Court, bypassing lower courts. In cases where states sue the federal government, they can bring their complaints directly to the court under an original jurisdiction petition, though only a few such cases are heard annually.
The unusual move comes after the Supreme Court over the last 1 1/2 years has reined in EPA powers in two separate cases, curtailing the agency’s ability to address climate change and regulate wetlands in Alaska and elsewhere.
The state argued in its opening brief in July that the EPA has “effectively confiscated” state land, damaging Alaska’s sovereignty and regulatory powers.
The Pebble project is on state land about 200 miles southwest of Anchorage, near headwaters of Bristol Bay, home to the world’s largest sockeye salmon fishery.
Opponents fear the mine will destroy fisheries that provide $2 billion annually while supporting 15,000 jobs and subsistence fishing for Alaska Native communities. The Pebble deposit contains minerals worth hundreds of billions of dollars. Pebble Limited says development there will support the Alaska economy and generate up to 2,000 jobs.
The Dunleavy administration filed a 17-page brief with the U.S. Supreme Court last month arguing that the court should hear the case.
The state argues that the EPA has violated the Alaska Statehood Act and the 1976 Cook Inlet Land Exchange Act in which the federal government conveyed the Pebble land to Alaska, while the state provided lands for the creation of Lake Clark National Park in the region.
“The federal government has stripped the State of its ability to manage its land, water, and natural resources — all ‘matter(s) of great state concern,’” according to the brief. “The federal government has deprived the state of billions of dollars — tax revenue that Congress long ago determined was critical to funding the Alaska state and local governments. And the federal government has prevented the creation of thousands of new, high-paying jobs for Alaskans. These sovereign interests plainly warrant this court’s original jurisdiction.”
The brief was filed by Alaska Attorney General Treg Taylor and other attorneys. The state has hired Consovoy McCarthy, a Virginia-based law firm that has championed conservative causes and previously contracted with the state under the Dunleavy administration in a dispute with public employee unions.
The state also argues that the court should consider its claim that it should be compensated for the loss of its property, calling the EPA action an unconstitutional taking.
“Defendants destroyed all economic value of the Pebble deposit and the hundreds of square miles of surrounding lands, nullified the State’s reasonable investment-backed expectations, and forced the State to bear burdens that the whole country should share,” the state argues.
Patty Sullivan, with the Alaska Department of Law, said in a statement, “The State has robust environmental laws, which any mine has to comply with. Here, however, the EPA exercised a veto of any development, no matter if it meets environmental standards, over an area that is much larger than the particular mine site at issue. Instead, the EPA effectively took away a few hundred square miles of state land that was specifically given to the state for its resource potential.”
A collection of groups that includes the National Mining Association, the Alaska Miners Association and the Alaska Chamber have joined the side of the Dunleavy administration in its petition for a Supreme Court review, filing a single friends-of-the-court brief. Also part of that filing is the Alaska Oil and Gas Association and the Alaska Peninsula Corp., an Alaska Native corporation for a handful of villages in the region that has agreed to provide transportation support for the mine.
Deantha Skibinksi, executive director of the Alaska Miners Association, said the association and other groups are concerned that allowing the EPA veto to stand will have broad impacts on mining and other resource development projects nationally.
The state miners association doesn’t want to see the permitting process circumvented, she said.
“The implications of the case go much further than just mining, just Pebble, and just Alaska,” she said. “That’s why you see so much diverse participation in this issue.”
The Biden administration argued last month that there’s nothing unique about the state’s situation that would require the U.S. Supreme Court to accept the case under original jurisdiction, according to its reply.
The state’s argument that it would lose economic benefits could open the court “to all manner of challenges to federal agency action,” the federal government argues.
“This court should not open the floodgates to routine disputes about the meaning and application of federal law that the lower courts are fully capable of resolving in the first instance,” the federal government argues.
The U.S. also argued that nothing in the Alaska Statehood Act or the Cook Inlet Land Exchange Act prevents EPA from using its authority under the Clean Water Act to halt the mine.
“In sum, Alaska alleges no plausible basis to conclude that the State or its lessee has the right to mine lands conveyed via the Statehood Act without complying with generally applicable federal law,” the U.S. argues. “Because the central theory of Alaska’s case is insubstantial, the Court should not entertain its complaint.”
The United Tribes of Bristol Bay, a consortium of 15 tribes from the Bristol Bay region, and the Bristol Bay Native Corp., the Alaska Native corporation for the region, filed a brief last month opposing the state’s bid.
Alannah Hurley, executive director of United Tribes, said the group has some concern about how the Supreme Court will land.
“Things have been overturned that were law for decades,” she said of court decisions in recent years. “But regardless of what is happening with other cases, we’re very confident the arguments the state is making don’t have a real basis. That said, we’re taking all legal challenges very seriously.”
The United Tribes and the Bristol Bay Native Corp. said this week in a statement that they believe the Supreme Court will decide some time next month whether or not it will take up the case.