Reading the tea leaves on EPA’s Pebble Mine action

Pruitt speaking in February 2017 at the Conservative Political Action Conference

Pruitt speaking in February 2017 at the Conservative Political Action Conference

Last week, EPA head Scott Pruitt announced that he will not scrap the agency’s 2014 determination that a large mining operation could irreparably harm Alaska’s Bristol Bay water­shed. While not blocking the proposed mine outright, Pruitt’s decision nevertheless surprised EPA watchers on both sides. EPA’s announcement said the decision “neither deters nor derails the application process” for the mine.

Environmental groups have guardedly cheered this decision. But is their reaction justified?

No one knows how this will turn out but having spent more than 30 years involved in the development and enactment of the Clean Water Act as Senior Counsel for the House Committee on Public Works and Transportation and in the implementation of the Act as Chief Counsel of the Corps of Engineers, I can see a potentially different outcome.  Indeed, depending on how the litigation progresses, Administrator Pruitt’s recent decision might actually facilitate permit approval for the Pebble Mine.

As background, last spring, Administrator Pruitt had directed EPA staff to reconsider the EPA’s 2014 decision to stop the project using a provision in the Clean Water Act. EPA had concluded that the mine could cause “significant and irreversible harm” to the area’s habitat.

Follow this possible legal path: If Northern Dynasty Minerals, the Pebble Mine’s main backer, eventually has to sue to obtain EPA’s 2014 preemptive veto turned around, the current EPA will be in the position of defending this Obama Administration position. A cynic might suggest that EPA will be less than eager to embrace this option. Therefore, it’s possible that environmental groups and local opponents will have to shoulder significant burdens in the litigation – and that’s usually a big problem for third parties.

Paradoxically, this may leave Administrator Pruitt in a stronger position than he’d have been in by reversing the 2014 ruling.  Had he done that, he’d almost certainly have had to contend with a legal onslaught from environmental groups and locals. Those groups would have stood a good chance to prevail.

However by reinstating the EPA’s 2014 determination, allowing the Corps of Engineers to review favorably an application for a permit and following that with a less than enthusiastic defense of the 2014 determination, the courts may wind up compelling the issuance of a permit.

Les Edelman
Senior Counsel/Senior Advocate

Prior to joining Dawson Les spent nearly 20 years as Chief Counsel of the US Army Corps of Engineers in Washington, D.C.  This involved responsibility for managing more than 400 lawyers worldwide.

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