The Pebble Mine Victory
EPA Administrator Scott Pruitt is wasting no time broadcasting that an era of lawless environmental regulation is over. One of the best signals so far is the agency’s agreement last week to let the Pebble Mine project in Alaska proceed through regular permitting and legal order.
The EPA and Northern Dynasty Minerals Ltd. announced a legal settlement Friday that finally gives the Pebble Limited Partnership the right to work with the federal government on an environmental analysis of its proposed mine. The Obama Administration stripped Pebble of that right in February 2014 when it issued a pre-emptive veto of what could be America’s largest copper and gold mine. Pebble sued on solid legal grounds.
The Clean Water Act gives the Army Corps of Engineers the primary job of evaluating development projects. EPA can perform a secondary review and veto a project—though only with cause. The Obama EPA developed its own fictional model of a mine and then vetoed the project before Pebble had a chance to go through the Corps’s review.
Documents from freedom of information suits and legal discovery showed that EPA officials orchestrated opposition to the mine with environmental activists and native tribes. The other victim of this campaign was the state of Alaska, which owns the mine site but was cut out by the EPA.
The EPA’s pre-emptive veto was the first in the history of the Clean Water Act, and a damaging precedent. It positioned the agency to become a superregulator able to kill any bridge, mine, pipeline or oil well before companies could make a case. Mr. Pruitt’s reversal will unleash capital that has been on strike due to arbitrary regulation. No sane investor would risk years of financial and legal hardship in light of the federal treatment of Pebble, the Keystone XL pipeline or the Shell Arctic development.
The EPA agreement offers no guarantee that the Pebble Mine will be approved after state and federal reviews. But at least Alaska and Pebble stakeholders can get a fair hearing from a transparent federal process.
Appeared in the May. 17, 2017, print edition.