State seeks Supreme Court action on EPA’s Pebble Mine decision

ANCHORAGE, Alaska (KTUU) - Alaska’s attorney general has responded to an order from the Environmental Protection Agency’s final determination on Pebble Mine issued earlier this year, filing a brief to urge the agency to review its decision to prevent development.

Attorney General Treg Taylor’s brief calls on the United States Supreme Court to review the EPA’s January decision to prevent the U.S. Army Corps of Engineers from issuing any permits to develop the region near Bristol Bay.

“The State seeks a declaration that the EPA’s veto is unlawful and an order setting it aside and enjoining its enforcement,” the brief said. “Alternatively, the State seeks damages for a breach of contract and just compensation for a taking.”

The EPA’s final determination on the Pebble Mine project found that the enterprise would be incompatible with the protections established by the Clean Water Act. The EPA has the authority to restrict, prohibit, deny or withdraw permits granted by the Army Corps for work found to be counterproductive to the conservation efforts of the Clean Water Act.

The January decision effectively stopped the development of the project, which would extract valuable gold and copper but also produce more than 10 billion tons of tailings and waste, potentially harming an environment that houses more than half of the world’s sockeye salmon population.

A press release from the state’s Department of Law argues that when the EPA prohibited the issuance of permits for 309 square miles of state land, it “effectively confiscated State property and created a de facto national park.” It also says that the EPA’s action “usurps the State’s ability and responsibility to protect its own natural resources.”

“The preemptive veto is alarming,” Taylor said. “If EPA can rely on undefined terms and subjective standards instead of sound science to bypass the regular State and federal permitting processes here, it can do it anywhere, from large mining projects such as this, down to a family building their dream home. It’s an indefensible and unprecedented power grab that the U.S. Supreme Court should find unlawful.”

Somewhat ironically, Taylor has chosen to mirror the EPA’s actions by requesting that the Supreme Court take up the issue — before it has been heard by a lower court.

“An original action, where a case is heard directly by the Supreme Court instead of first progressing through the lower courts, is an extraordinary ask, but it’s appropriate given the extraordinary decision being challenged,” Taylor said.

Opponents of Pebble Mine, including the Bristol Bay Defense Fund, called the filing a “radical Hail Mary” that “ignores long established procedural rules regarding challenges of agency actions”.

“The EPA’s authority to protect Bristol Bay under the Clean Water Act stands on an extensive and robust scientific and technical record that spans two decades and three presidential administrations,” a statement from BBDF read. “Alaskans and people across the country overwhelmingly support EPA’s action to protect Bristol Bay, and do not support the Pebble Mine. We will continue to defend Bristol Bay against the threat of the Pebble Mine and the State’s legal antics as long as necessary to ensure that the region, Tribes, salmon, and clean water resources are protected forever.”

Environmental organization Earthjustice was also critical of the state’s move. Carole Holley, Earthjustice’s Alaska Regional Office Managing Attorney, noted it was out of the ordinary.

“It’s a highly unusual legal move, and also a highly unpopular one,” Holley said. “The governor and his administration are working against the wishes of most Alaskans, especially Bristol Bay residents, by continuing to side with the mine developer.”

According to Earthjustice, 2 out of 3 Alaskans oppose the development of the Pebble Mine.

“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,” Gov. Mike Dunleavy said. “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.”

Alaska Department of Environmental Conservation commissioner Jason Brune argues that existing procedures for issuing permits are qualified to uphold environmental standards.

“Alaska has some of the most robust environmental permitting requirements in the world ensuring development of critical natural resources occurs side-by-side with protection of human health and the environment,” Brune said. “Congress intended Alaska to have primary responsibility over land and resource management decisions under the Clean Water Act’s framework of cooperative federalism. EPA robbed us of this opportunity.”

The full brief in support of Attorney General Taylor’s complaint can be read online.

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