Permitting
When planning and designing the Proposed Project in our permit application for Pebble in 2017,
we made deliberate choices, demonstrating our commitment to protecting the environment:
EXTENSIVE BASELINE STUDIES
MINIMIZING THE FOOTPRINT
MANAGING WATER
MANAGING TAILINGS AND WASTE
NO CYANIDE IN PROPOSED PROJECT
Acceptance of our application triggered the Environmental Impact Statement (EIS) process. Led by the US Army Corps of Engineers, the EIS involved 8 federal and 3 state cooperating agencies, the Lake & Peninsula Borough and federally recognized tribes.
The final Pebble EIS states that the Pebble Project can:
- Co-exist with the fishery in southwest Alaska while protecting water resources
- Make a significant socioeconomic contribution to the Bristol Bay region, its residents and communities and the state and local governments.
Despite the Positive EIS, a negative Record of Decision (ROD) was issued; its conclusions appear to completely disregard the EIS. Our Request for Appeal argues that the Army Corps’ finding is:
- Inconsistent with the law and Clean Water Act (CWA) regulations
- Arbitrary and unsupported by the administrative record, including the final Pebble EIS
- Unprecedented in Alaska and detrimental to the future of resource development in the state.
The ROD is currently under administrative appeal; in April 2023, USACE Pacific Ocean Division took action to remand the permit decision back to the Alaska District to re-evaluate specific issues. Refer to our news releases here for the most recent updates on this process.
Another Questionable EPA Action
When Final isn’t Final
The US Environmental Protection Agency (EPA) was fully engaged and publicly stated its confidence in the Pebble EIS process. Yet in 2022, the EPA introduced the Revised Proposed Determination (RPD) - another in a series of questionable EPA actions, beginning in 2011 with an initiative to craft its Bristol Bay Watershed Assessment with a “hypothetical mine plan” - a plan that purposely ignored good practice and which pre-dated the Pebble permit application, proposed mine plan and results of extensive baseline studies (also see Final Determination: Part of a History of Questionable EPA Actions).
The EPA issued the RPD “…rather than undertaking any objective evaluation of the proposed project …making clear that its goal is to prevent any development of the Pebble Deposit, rather than to prevent any adverse effects to local or regional fish populations or fisheries,” Pebble Partnership RPD comments.
The RPD “…should have been withdrawn as it is based on indefensible legal and non-scientific assumptions. The process and the decision have been political from the start…” Pebble Partnership CEO John Shively.
“The EPA tried this in 2014 and was forced to settle and allow Pebble to proceed through the normal, well-established permitting process in the United States. We believe we will not be alone in the fight against this injustice…” Northern Dynasty CEO Ron Thiessen.
Northern Dynasty and the Pebble Partnership are not alone in their concerns: Alaska and 13 other states submitted comments on the RPD, and when EPA released plans to introduce the pre-emptive veto in December 2022, Alaska Governor Dunleavy announced the State planned to sue EPA.
When final isn't final: The Final Determination completes EPA’s administrative process; however, it is only the initial trigger in the judicial review process. The Administrative Procedure Act provides that individuals aggrieved by agency action may seek judicial review of any “final agency action,” that is, EPA’s administrative determination can be challenged by filing a lawsuit in U.S. federal district court seeking reversal of that decision. If successful, state or federal permits necessary to develop the resource could be pursued.
Northern Dynasty, through PLP, plans to challenge the decision (see 2023 quarterly filings for updates).
On July 26, 2023, the State of Alaska filed a Motion for Leave to File a Bill of Complaint with the U.S. Supreme Court challenging the Final Determination. In their complaint they asked the Supreme Court to hear their case, bypassing the typical process of going through the Federal District Court system first. The Supreme Court did not agree with the motion, which is a procedural decision not a comment on the merits of the case. The next step in the fight is to challenge the EPA’s illegal veto in the Federal District Court.
There’s more: In May 2023, the U.S. Supreme Court issued a decision on the case of Sackett v. EPA, which re-wrote the definition of “Waters of the US” (WOTUS). Over the years, EPA had expansively interpreted WOTUS to also encompass a resource labeled “Jurisdictional Wetlands”, ie, lands where flow is intermittent whereas in Sackett, WOTUS was clarified to mean waters (and wetlands) with continuous surface flow into truly navigable waters, reducing the scope of EPA’s (and USACE’s) authority under the Clean Water Act (CWA). The Sackett ruling could be quite important for Pebble in terms of the degree to which the Proposed Project is exposed to CWA consideration, as it would reduce the quantum of Jurisdictional Wetlands in the Pebble Deposit area. The Company has retained a reputable expert consulting firm with a significant presence in Alaska to assess the impact from Sackett.
