Special Topics in Environmental Management

Pebble Mine Getting a Second Look Under Trump?

The Pebble Mine—like the Keystone XL Pipeline and North Dakota Access Pipeline, another mega project rejected by the Obama administration—may also get a second look under President Trump. That, in any case, is the expressed hope of Rep. Lamar Smith (R-TX), chair of the House Committee on Science, Space, and Technology. In a letter to EPA Administrator Scott Pruitt, Smith requests that the Agency rescind its 2014 final assessment, which found that the mine would have toxic effects on the largest sockeye salmon fishery in the world. Subsequently, the EPA proposed to use its Clean Water Act (CWA) authority under Section 404(c) to severely limit disposal of dredged or fill material associated with the mine, a restriction that would probably kill the project.

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Largest North American mine

Located in Alaska’s Bristol Bay, the project objective is to extract up to 11 billion tons of copper and gold ore, making it the largest mine of its type in North America. The mine would employ an estimated 14,000 workers and generate annual revenues of nearly $500 million.

However, in a petition to the EPA, native Alaskan tribes said the mine would endanger the salmon populations and fishing economy of the region. The petitioners asked that the Agency make use of Section 404(c). That section specifically states that the EPA may prohibit the use of any area as a disposal site if the Agency determines that activity “will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas.”

De facto veto

According to Smith, the Agency’s 2014 assessment was issued before the mining company, Canada’s Northern Dynasty Minerals, even submitted a CWA permit application for the mine, which, Smith continues, constitutes an unlawful rejection of the project.

“Using section 404(c) in this preemptive fashion is de facto veto of this specific project and establishes a dangerous precedent of expansive federal agency powers that may be used in the future to prevent projects that would contribute positively to the American economy,” wrote Smith.

He adds that rescinding EPA’s proposed use of Section 404(c) in a preemptive fashion “will allow a return to the long-established Clean Water Act permitting process and stop attempts by the EPA to improperly expand its authority.”

Not unprecedented

Two days after Smith sent his letter, Rep. Eddie Bernice Johnson (D-TX), the Science Committee’s ranking member, also wrote to Pruitt, stating that the EPA made correct use of Section 404(c). Johnson noted that EPA administrators utilized their “clear authority” under Section 404(c) on 13 previous occasions since 1980, and there was nothing “unprecedented” about the Pebble Mine assessment, as Smith alleged.

Moreover, said Johnson, under President Reagan, the EPA made use of Section 404(c) a total on nine times, including once in a preemptive fashion before a mine permit application being filed.

“I hope that as EPA Administrator, you will adhere to the mission of the Agency that was created to protect the environment and the public’s health, not the potential profits of foreign mining entities, such as Canada’s Northern Dynasty Minerals and its proposed Pebble Mine,” wrote Johnson.

Smith’s letter is here. Johnson’s letter is here.