Pebble, EPA say lawsuit should continue

Pebble Limited Partnership and the Environmental Protection Agency finally agree on one thing: their court fight should move forward.

Each side filed seven-page briefs May 14 requesting Alaska U.S. District Court Judge H. Russel Holland continue with an oral argument hearing in Pebble’s lawsuit against the EPA scheduled for today.

Holland ordered the sides to file short-notice briefs May 4, asking if an Office of Inspector General evaluation of the EPA’s Bristol Bay Watershed Assessment would impact court proceedings and if the lawsuit should be suspended until the Inspector General report is released.

The assessment, released in January 2014, is the agency’s basis for its move to preemptively ban the copper and gold mega-project near Iliamna before Pebble applied for permits or released a mine plan.

Pebble claims the EPA developed the 1,000-plus page Bristol Bay Assessment under false pretense — that the agency used science from biased experts dead-set against the mine project, and decided to use its authority under Section 404(c) of the Clean Water Act to stop mine development years before the assessment was released.

The EPA has resoundingly denounced Pebble’s allegations in court and through its public affairs campaign.

Holland’s May 4 order indicated the federal judge was unaware of the pending Inspector General review until he read a May 3 Alaska Dispatch News story that summarized the Pebble fight.

The IG review began about a year ago and has been reported on extensively by multiple state and national news outlets.

In November, Holland issued a preliminary injunction ordering the EPA to halt its 404(c) process until the lawsuit is resolved over whether the agency violated public process and objectivity laws in drafting the Bristol Bay Assessment.

Without the injunction, the seldom-used 404(c) project ban could have been finalized over winter, as EPA officials have said the process initiated in February 2014 usually takes about a year to complete.

Holland dismissed another suit against the EPA in September filed by Pebble that claimed the agency was overstepping its authority with the 404(c) action. He ruled Pebble did not have a case on that front because, among other reasons, the EPA had not officially finalized its decision.

The agency has never before stopped a development project in such an early stage as Pebble via its 404(c) authority.

In the EPA’s latest brief to Holland the agency’s attorneys wrote that “the government is very concerned that postponing a decision on its motion to dismiss (set to be argued May 28) would unduly delay this litigation.”

If the suit is delayed the EPA will be under the injunction for more than a year without any resolution as to whether Pebble has a valid argument, according to the agency’s brief.

The court filing states that an IG representative told EPA counsel that a final evaluation report is not expected until February 2016.

Further, EPA attorney’s noted that the IG evaluation can have no bearing on the court case.

Pebble’s filing states it is “well aware” of the IG evaluation and included several letters Pebble and its parent investor Northern Dynasty Minerals Ltd. sent to the office that they claim details the EPA’s biased actions.

In a Feb. 27 letter to EPA Inspector General Arthur Elkins, Jr., the mine developers state documents Pebble obtained through a Freedom of Information Act request prove EPA Region 10 ecologist Phillip North “collaborated” on a petition to initiate the 404(c) process submitted by regional Alaska Native groups with the groups’ attorney Geoffrey Parker months before the official assessment drafting began.

The correspondence took place in early 2010, according to the letter.

A March 12 letter states that “Pebble has recently obtained a document from the National Park Service that further proves that EPA colluded with anti-mine activists to veto the Pebble mine, even before (Pebble Limited Partnership) submitted an application for regulatory approval.”

Elwood Brehmer is a reporter for the Alaska Journal of Commerce.