03/05/2014 02:44 pm ET Updated Dec 06, 2017

EPA Moves to Block Pebble Mine

Anti-Pebble flag at Peter Pan cannery, Dillingham, AK, 2009

Environmental Protection Agency Administrator Gina McCarthy announced Friday that the Agency is taking the first step towards exercising its powers under the Clean Water Act to block development of the controversial Pebble Mine, a massive copper and gold deposit located in Alaska's renowned Bristol Bay region. The move culminates more than three years of study by the Agency and potentially cuts off development of the mine before the Pebble Limited Partnership, the consortium of mining companies behind the project, has even applied for permits.

And while McCarthy stressed that the announcement merely blocked permitting temporarily and initiated a four-step process that might lead to permanent protection of Bristol Bay, the news looked like a substantial victory for the coalition of fishermen, environmentalists, and local Native groups who have been arguing for years that the location of the deposit near the headwaters of major river systems meant that it could not be mined without unacceptably endangering the legendary Bristol Bay salmon run. It's become the most politically-charged resource debate in Alaska, pitting a mine worth potentially hundreds of billions of dollars against a salmon run that forms the backbone of a the region's pristine ecosystem and supports its robust commercial and sport fishing economy, as well as the salmon-based culture of the tribes who have lived in the area for millennia.

"Today, EPA is taking a significant step forward in our efforts to insure that the world's most productive salmon fishery is safe from the risks that it faces from what could be one of the largest mines on earth," McCarthy told reporters in a conference call Friday, explaining that Section 404(c) of the Clean Water Act gives the agency the ability to act pre-emptively by exercising its "veto authority" over permits issued by the Army Corps of Engineers. "This 404(c) process is not something -- and I want to stress this -- that the agency does very often," McCarthy said, "but the Bristol Bay fishery is an extraordinary resource, and it's worthy of out-of-the-ordinary agency actions to protect it."

It is, indeed, a rare invocation of then EPA's authority to restrict or outright prohibit any discharge of dredge or fill that might have "unacceptable adverse effects" on water supplies, wildlife, fisheries, or recreational areas. Such a process has been initiated just 29 times previously, and it has run to completion and resulted in restrictions just 13 times. Only once has the Agency interceded before permits have been filed, as it is contemplating with Pebble.

But in this case, the EPA feels it has done its homework, having spent more than three years acquainting itself with Bristol Bay. The agency's involvement in the Pebble issue started in 2010 when, at the request of local tribes and stakeholder groups, it initiated a comprehensive study of the potential effects of large-scale mining on the Bristol Bay watershed. That process took more than three years of gathering data, and after numerous public meetings, more than a million online comments, and two rounds of scientific peer review, the final draft of the Bristol Bay Watershed Assessment was released in January.

And though controversial with pro-development Alaskans and conservative politicians who saw it as an egregious federal intrusion on Alaskan sovereignty, its conclusions were clear. "EPA has concluded that large scale mining in the Bristol Bay watershed poses significant near and long-term risks to salmon, wildlife, and Native Alaskan cultures," Dennis McClerran, Regional Administrator for EPA's Region 10, which covers Alaska and the Pacific Northwest, said at the time. And though the agency insisted that no determination had been made on whether to block Pebble's permitting, most of those involved in the Pebble debate have been waiting expectantly since January for the other shoe to drop. On Friday, it did.

The Pebble Partnership and majority owner Northern Dynasty Minerals, of Canada, in response reiterated its earlier criticism of EPA intercession and called the initiation of this process "premature and unprecedented" in a release issued Friday afternoon. "We remain confident in our project and our position" said Pebble CEO Tom Collier in the statement. "We will continue to state our case with the EPA as we work through their process. The EPA's actions today are an unprecedented federal action and reflect a major overreach onto an asset of the State of Alaska." (The market was less optimistic: by day's end Friday, Northern Dynasty's stock had fallen by nearly a third, from $1.47 at opening to just a dollar a share. It has spent this week trading in the 80 to 95 cent range. As a comparison, at this time last year it was trading at $3.40 per share.)

McCarthy anticipated the "overreach" criticism by noting in her announcement that this decision was within EPA's legal authority to make and that it was unique and in no way meant to set a precedent. The Pebble folks weren't the only ones to disagree with her.

"Today's egregious action by the EPA goes beyond federal overreach," read a statement from Sharon Leighow, Press Secretary for Alaska Gov. Sean Parnell. "The EPA has not only cut off public input and process, but ahs also unilaterally decided that they, not Alaskans, know what's best for our future."

One thing she seems to be mistaken on: There definitely will be ample opportunity for more public input as the EPA works through the four-part 404(c) process, which will involve public comment periods, public hearings, and consultations with the affected parties. "On average," McClerran told reporters on Friday's call, "the 404c process from beginning to end has taken approximately a year."

So while those who have been fighting Pebble will have to wait a little longer to see whether the EPA's temporary freeze on mining in Bristol Bay becomes permanent, they were clearly of the opinion that this announcement was a nail -- if not the final one -- in Pebble's coffin. "This puts EPA's eyes on the prize," said Joel Reynolds of the NRDC, which has been a vocal opponent of the mine. "The science is sound, EPA's legal authority is clear, and the people of Bristol Bay have demanded protection."

Indeed, it's hard to see the EPA backing down at this point, especially with support from the Obama Administration. "The White House strongly supports that decision by the EPA," White House press secretary Jay Carney told reporters Friday, according to The Washington Post. "The step is consistent with the presiden's commitment to protect pristine American places for future generations."

In response to the final question at the end of the conference call with reporters, McCarthy made a case for the Agency's exceptional action. "In rare times, you see something that is an extraordinary confluence of issues and factors and the law tells us we should have cognizance of that," she said. "Alaskans asked us to pay attention, and this is really the EPA paying attention to an extraordinary situation."