Industry, GOP fear power-grab by EPA in Alaska mine decision

Industry groups and Republican lawmakers fear the Environmental Protection Agency (EPA) is poised to set a new precedent in Alaska that could make it harder for companies to obtain mining permits near sensitive habitats.

The EPA has signaled it might reject a proposed copper and gold mine in Bristol Bay, Alaska, over concerns that the project could disturb the world’s largest sockeye salmon run.  

The companies behind the proposed Pebble mine note that the EPA has never before blocked a mining project after a preliminary watershed assessment, and warn that doing so now would tilt the scales in favor of environmental groups that want to block energy production.

Ross Eisenberg, vice president for energy and resources with the National Association of Manufacturers, said a decision to stop the Pebble mine based on the preliminary test would give environmental groups an opening to stop other projects.  

“The real danger that we’ve all got is, if they can figure out how to get this done with Pebble, they can get this done in other areas,” he said. “There are lots of groups that don’t like mining. This is one way to get the mining to stop.”

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The fate of the mine has drawn attention from Republicans on Capitol Hill. House Oversight and Investigations Committee Chairman Darrell Issa (R-Calif.) sent a letter to EPA in May calling its activities in Bristol Bay “unprecedented and legally questionable.”

“EPA has been exceptionally vague on why it believes it has this pre-emptive authority,” Issa wrote. “EPA's assertion of pre-emptive veto power appears to undermine the permitting process as outlined by Congress when it passed the [Clean Water Act].”

Rep. Paul Broun (R-Ga.), the chairman of a House subcommittee, has also questioned EPA’s handling of the project. He cited concerns about a rushed process that will require “scientific credibility … beyond reproach” to justify killing the proposal based solely on the water test.

Alaska’s congressional delegation has not taken a position on the mine, largely because EPA is conducting its watershed test before a formal plan has been submitted. But Sens. Mark Begich (D) and Lisa Murkowski (R), as well as Rep. Don Young (R), all believe EPA is using the early assessment too aggressively.

The mine is a sensitive subject for Alaskans, and spokesmen for all three lawmakers said favoring Pebble could disadvantage a thriving commercial fishing industry. Bristol Bay is home to 46 percent of the world’s wild sockeye salmon, according to EPA.

The Pebble mine, however, could generate 80.6 billion pounds of copper, 107.4 million ounces of gold and 5.6 billion pounds of molybdenum, which is used in alloys, according to the Pebble Mine Partnership.

What concerns the mine’s proponents and Alaskan lawmakers is that no final plan for the project has been submitted to EPA for review, so the agency is instead using its own parameters to conduct the watershed tests. They say EPA is taking an activist approach that circumvents the U.S. Army Corps of Engineers’ authority to decide on the 60,000 permits they issue annually for such projects.

EPA told The Hill that it used a "hypothetical, but realistic mine plan" to conduct a scientific assessment of the impact on Alaskan waterways.

"This is a scientific assessment — not a regulatory document or decision. By conducting this assessment prior to receiving a final mining plan, we evaluate the current status of the fishery and potential impacts of large-scale mining," EPA said. "The results of the assessment will help inform future decisions the agency or others might take concerning the management of the watershed."

The agency said destruction of wetlands from the Pebble mine is unavoidable.

"Regardless of where a mine is placed in the watershed, a large-scale mine would include infrastructure that would, at a minimum, cover and destroy streams that potentially support salmon spawning and rearing, and result in the loss of large amounts of wetlands," EPA said.

Robert Dillon, a Republican spokesman for the Senate Committee on Energy and Natural Resources and Murkowski’s point man on energy issues, said he expects EPA to veto the mine. That will have a “chilling effect” on projects across the country, he said, even if the decision is eventually overturned in court.

“It’s an unprecedented extension of their power,” Dillon said. “Someone will take [EPA] to the court … and EPA will have to go back. But the problem is that’s a decade down the road.”

But Michelle Halley, an attorney with the National Wildlife Federation (NWF), said EPA’s deliberations in Alaska are a matter of policy, not legality. She said nixing Pebble mine would merely chart a new course with EPA policy, rather than set a new legal precedent about the agency’s authority.

The NWF is considering asking EPA to conduct similar water tests in the Great Lakes region, according to Halley. The group says potential sulfide mines in Michigan, Minnesota and Wisconsin could necessitate the same type of test EPA is performing in Alaska.

“Someone really needs to get a handle on what this means for the watersheds overall,” Halley said. “Perhaps the EPA will want to utilize what they’ve done for Pebble mine for what they should and could do for the Great Lakes.”

Halley said states in the Great Lakes region lack the money and resources to conduct comprehensive watershed assessments. She wants the EPA to take a more active role in oversight and regulation of mines, which she said could provide regional environmental insight.

“It’s not even something that’s on the states’ radar, in my view, to ask the EPA to look at something like that,” Halley said. “Those states just aren’t equipped to do those kinds of assessments, and they’ll be the first to tell you that.”

Jason Metrokin, president and CEO of the Bristol Bay Native Corp., said getting the EPA to address the salmon issue up front is the most efficient way to protect Bristol Bay’s salmon. 

Though Alaskan lawmakers want to go through the normal application process that lets EPA ask for changes later, Metrokin said going down that road in Alaska is usually a fast track to approval. He said EPA has the legal authority to boost safeguards for salmon.

“The state might argue or the congressional delegation might argue that it won’t get a rubber stamp,” Metrokin said. “But looking back at the history of the state, has there been a time where a large mine has not been approved?”