Pebble files suit to stop overreaching EPA

The Pebble Limited Partnership (PLP) has filed suit in U.S. District Court for Alaska seeking an injunction to stop the Environmental Protection Agency’s (EPA) process to preemptively veto the Pebble Project under Section 404(c) of the Clean Water Act (CWA).

In its complaint, PLP asserts that in the absence of a permit application, EPA’s action exceeds its authority under the CWA and is contrary to the Alaska Statehood Act, the Cook Inlet Exchange legislation, and other federal law.

PLP CEO Tom Collier issued the following comments:

“Simply put, EPA has repeatedly ignored detailed comments that we, the State of Alaska and others have made about this massive federal overreach and continues to advance an unprecedented preemptive regulatory action against the Pebble Project that vastly exceeds its CWA authority. If EPA ultimately vetoes Pebble before a development plan is proposed or evaluated through the comprehensive federal and state permitting processes, the precedent established will have significant long-term effects on business investment in this state and throughout the country.

“Litigation is necessary in order to get the Agency’s attention and bring some rational perspective back to the U.S. permitting process. While we prefer to avoid this lawsuit, we are prepared to defend ourselves against the precedent-setting, unlawful actions of this agency.

“Our legal action does not in any way seek to diminish EPA’s legitimate role under the CWA, or its right to participate as a regulatory agency within the CWA permitting process – including a comprehensive review under the National Environmental Policy Act (NEPA). Congress clearly intended for the EPA to play an important role in reviewing U.S. Army Corps of Engineers’ (Corps) permitting decisions with the ability to exercise a veto when a project presents a risk of unacceptable adverse effects to aquatic resources – but only after that project has been proposed by its developers, CWA Section 404 permits are sought, a comprehensive Environmental Impact Statement (EIS) process is undertaken under NEPA, and the Corps has proposed issuing a permit for a specific disposal site and specific disposal material. None of those steps have occurred at Pebble.

“Further, EPA has exceeded its statutory authority and violated federal law by preventing Alaska from exercising its rights under the Alaska Statehood Act to determine the best way to manage state lands to benefit the people of Alaska. We are urging EPA to immediately stop its preemptive action against Pebble and the State of Alaska. While Pebble must defend itself, this precedent setting overreach is of great concern to the entire development community. There are some 60,000 404(c) permits sought under the CWA every year in the United States, representing hundreds of billions of dollars in project investment and impacting hundreds of thousands of jobs.

“The correct, legal, and defensible way forward is for EPA to suspend its preemptive 404(c) process and allow us the full opportunity to have our project reviewed by federal and state regulatory agencies, including EPA, under NEPA.”

In its legal filings in the U.S. District Court for Alaska and in previous comments with respect to the Bristol Bay Assessment, PLP has pointed out a number of fundamental problems with the preemptive regulatory process EPA is taking against Pebble, including:

• EPA is exceeding its statutory authority under the CWA;
• EPA is usurping the legitimate regulatory authority of the State of Alaska and Corps;
• EPA’s Bristol Bay Assessment does not provide a sufficient scientific or technical foundation for regulatory decision making;
• there is considerable evidence of political bias and pre determination of outcomes in the Bristol Bay Assessment, leading the independent Office of the EPA Inspector General to initiate a preliminary investigation into EPA conduct;
• an EIS process under NEPA would provide a more objective, comprehensive, transparent and inclusive review of the Pebble Project than the Bristol Bay Assessment – a fact acknowledged by EPA;
• no environmental harm will occur if EPA stands down from its preemptive 404(c) regulatory process and participates fully in the NEPA process to come – secure in the knowledge that it will retain its authority to veto Pebble if it remains concerned the project, as defined by its proponents and assessed under an EIS, still presents a risk of unacceptable adverse effects to aquatic resources.

Alaska has sought to intervene in the lawsuit, believing the case has far-reaching implications for all state and federal lands. The state believes EPA’s overreach infringes on its role in regulating uses within its borders. The EPA’s action undermines Alaska’s ability to utilize its resources to grow the economy and create jobs if, after detailed and lengthy environmental review, permitting is warranted, the state said.

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