Too hefty for run-around
Cohen report finds EPA efforts to stop Pebble unfair, potentially illegal
Last updated 1/26/2018 at 2:07pm
A Washington, D.C. think tank has weighed in on the question of whether the U.S. Environmental Protection Agency erred in conducting an assessment of large-scale mining in the Bristol Bay region of Alaska before such a project was even proposed, let alone engaged in the federal permitting process.
EPA published its findings in a “Bristol Bay Assessment” and decided to place limits on development of the enormous and contentious Pebble copper-gold-molybdenum project in Southwest Alaska.
William Cohen, former U.S. Secretary of Defense, U.S. senator and founder of The Cohen Group, says the decision whether or not to develop Pebble is too hefty to circumvent the environmental permitting process established to make such judgments.
At the behest of Pebble’s would-be developer, the Pebble Limited Partnership, Cohen investigated the fairness of the EPA’s recent “assessment,” and concluded that the nation’s well-established permitting process under the National Environmental Policy Act is the appropriate mechanism for judging a project such as Pebble.
Instead of using this federal process, EPA chose to conduct a separate assessment of the potential impact of large-scale mining on the Bristol Bay region where Pebble is located. The agency then decided to use Section 404(c) of the Clean Water Act to pre-emptively ban or restrict permits for developing the world-class copper-gold-molybdenum deposit.
“The decision about whether to build a mine in this area, as well as the process used to make such a decision, is very important to Alaska’s environment, economy, people, fish and wildlife. It requires regulatory authority to be exercised in the fairest way possible. After a very thorough review, I do not believe EPA used the fairest and most appropriate process,” Cohen inked in an executive summary of his report published on Oct. 6.
Anti-Pebble groups, however, question the credibility of the Cohen investigation, given that it was paid for by the Pebble Partnership.
“Pebble Limited Partnership has once again chosen to spend its money on costly lawsuits and high-paid Washington, D.C. insiders instead of following through on more than a decade of promises made to the people of Bristol Bay to apply for permits,” said Nelli Williams, director of Trout Unlimited, Alaska program.
Cohen, himself, echoed Williams’ concerns when he took the job early in 2015.
“A condition of accepting this assignment is that I have complete independence and discretion as to how this work will be conducted,” he said at the time.
“I will follow the evidence wherever it might lead, and I will conduct this independent review as fairly and thoroughly as possible. Any conclusions that I draw from this review will be based upon the facts that I find and my judgment based on years of experience in government,” Cohen vowed.
During the course of his investigation, Cohen and his team poured over thousands of documents and interviewed more than 60 people, including three former EPA administrators and several former senior EPA officials.
EPA, however, declined the former senator’s requests to interview current employees of the regulatory agency.
“The statements and actions of EPA personnel observed during this review raise serious concerns as to whether EPA orchestrated the process to reach a predetermined outcome; had inappropriately close relationships with anti-mine advocates; and was candid about its decision-making process,” Cohen wrote in a summary of his 346-page report.
“We sought an independent, credible review by Secretary Cohen and his team, and they have expressed serious concerns about the EPA’s actions against Pebble,” Pebble Partnership CEO Tom Collier said in a statement following the release of the report. “Most troubling to me is the serious concerns (The Cohen Group) expresses as to whether the EPA orchestrated the process to reach a predetermined outcome.”
In a lawsuit filed in September 2014, the Pebble Partnership alleges EPA worked secretly with anti-Pebble groups with the goal of banning or restricting development of Pebble prior to the permitting process.
Judge H. Russel Holland, who is presiding over the case that Pebble has brought against the EPA in U. S. District Court for the District of Alaska, found Pebble’s allegations credible enough to issue a preliminary injunction ordering the regulator to halt efforts to use the CWA Section 404 (c) process to pre-emptively block or restrict Pebble permits.
Further probes merited
While Cohen declined to make any judgments on the legality of EPA’s actions that led to placing pre-permitting restrictions on Pebble, the former senator said he ran into evidence of questionable activities by the environmental regulator and urged federal watchdog groups such as the EPA Inspector General and U.S. House Oversight Committee to probe further into EPA’s actions at Pebble
“I believe the information unearthed to date merits the development of a complete record by those who have the subpoena power necessary to look at these questions more closely,” Cohen wrote.
The former secretary of defense also pressed lawmakers to require that major development projects in the United States, including Pebble, are evaluated under the NEPA process.
“This process, which entails compliance with NEPA and other regulatory requirements, an environmental impact statement, and input from EPA, other relevant agencies, and the State of Alaska, will supply the gaps in information which the BBWA (Bristol Bay Watershed Assessment) left outstanding,” Cohen penned in his summary report.
“This decision is too important to be made with anything less than the best and most comprehensive information available,” he added.
The Alaska Miners Association agrees and is urging lawmakers to thoroughly review Cohen’s findings.
“We have consistently maintained that natural resource development projects must be objectively evaluated within our established NEPA process,” said Alaska Miners Association Executive Director Deantha Crockett. “EPA’s disregard for the NEPA process has denied Alaskans from learning the specifics of the proposed development at Pebble and has set a dangerous precedent for other companies considering investing in Alaska.”