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Pebble pulls Army Corps into EPA lawsuit

North of 60 Mining News - June 12, 2024

Northern Dynasty exec says both federal agencies rely on the other's "factually unsupported assertions" to support politically motivated denials of copper mine permits.

Believing that the future of the Pebble Mine project is being held back by two federal agencies leaning on each other's "factually unsupported assertions," the Pebble Limited Partnership has filed a motion in federal district court to include the U.S. Army Corps of Engineers (USACE) into its lawsuit against the Environmental Protection Agency (EPA).

"It is important to understand that this is not a new lawsuit. It is simply an amendment of the complaint we filed against the Environmental Protection Agency by adding the USACE as another defendant," said Ron Thiessen, President and CEO of Northern Dynasty, which owns the Pebble Partnership. "We think this substantially strengthens the existing case by focusing directly on the permit denial which was an underlying reason for the EPA veto."

The reason Pebble Partnership has decided to bring USACE into the suit filed in federal court in March is because the Alaska-based subsidiary of Northern Dynasty believes that EPA's preemptive veto that prevents mining permits in the area where Pebble is located is based on fabrications of USACE's unlawful denial of permits for a mine at Pebble.

USACE based its decision to no longer review and potentially overturn its denial of permits for Pebble on EPA's 2023 veto decision that prevents the issuance of permits to develop a mine at the Southwest Alaska project.

USACE says that as long as the EPA veto remains in place it is prevented.

Pebble Partnership contends that the basis of USACE's original decision to deny permits for developing a mine at Pebble is in sharp contrast to the findings in its own final environmental impact statement for the project and the federal agency's reasoning behind not continuing to investigate whether or not that denial was in contrast to the law is circular logic.

Ron Thiessen

"We believe the EPA veto and the USACE permit denial were both undertaken entirely for political reasons and are contrary to the factual record, especially USACE's own environmental analysis, the final environmental impact statement (FEIS), which only supports granting a permit and does not support issuing a veto," said Theisen. "We believe both decisions will be reversed by the court, which relies on the factual record to make decisions."

The Pebble Partnership's amended complaint claims that the USACE must complete the reconsideration of its permit denial as ordered by the federal agency's own hearing officer.

In addition, the complaint alleges that the permit denial was unlawful because it reached conclusions contrary to those determined and described in detail in the FEIS – including that the project might damage the Bristol Bay fishery and there was risk of a catastrophic failure of the tailings facility.

"These are only two examples of more than a dozen conclusions that are contradicted by the record in this matter including, at its core, the FEIS and the environmental analysis that the government itself facilitated. In fact, the hearing officer remanded the permit denial to the Anchorage Office because of these exact errors," said Thiessen. "The real absurdity of the government's position is the closed loop, circular logic, where the EPA relies on fabrications of the USACE, which have been shown to be erroneous and unsubstantiated, while the veto action of the EPA is now being used as an excuse by the USACE not to go back and fix those factually unsupported assertions."

The Northern Dynasty executive further asserts that the EPA and USACE actions to deny permits for Pebble not only unlawfully prevent advancement of the world's largest undeveloped copper deposits but also undermine the mine permitting process in the United States.

"The permitting process (primarily the National Environmental Policy Act and related laws and regulations) is designed to help regulators make better decisions by removing politics and emotion, instead considering the findings of the extensive environmental studies and engineering work (science and facts) required in the process," he added. "When they choose to ignore these laws, regulations, studies and engineering works, we, as a mining industry, need to use the courts to right those wrongs. Although it is unfortunate that permitting in America too often requires litigation, that's what happens when the government agencies stop being unbiased regulators and instead act as advocates for special interest groups."

Author Bio

Shane Lasley, Publisher

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Over his more than 16 years of covering mining and mineral exploration, Shane has become renowned for his ability to report on the sector in a way that is technically sound enough to inform industry insiders while being easy to understand by a wider audience.


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