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EPA’s reversal on Bristol Bay raises risk of destructive mining in Minnesota, too

The lawsuit settlement is neither a cost-saving move nor a strategic surrender — just a simple giveaway to a foreign corporation that threatens local jobs and communities.

The fishery’s local economic value is routinely estimated at $500 million per year, and local employment in the range of 15,000 to 20,000 jobs.
REUTERS/Jonathan Ernst

The most encouraging modern development in how America limits mining damage took a torpedo on Friday.

Citing a preference for “regular regulation” — which is to say, the type most easily gamed by industry — the U.S. Environmental Protection Agency’s new chief announced that the EPA was dropping its defense against a lawsuit by would-be developers of a copper/gold/molybdenum mine at Bristol Bay, Alaska.

That would be the Pebble Limited Partnership of Canada, owned by Northern Dynasty Minerals Limited, the current Canadian brands on a four-decade-old effort to build the world’s largest open-pit mine for precious metals.

Pebble seeks to do this in a watershed that sustains not only world-class salmon runs but a variety of commercial, sport and subsistence fishing that depends upon the fish. The fishery’s local economic value is routinely estimated at $500 million per year, and local employment in the range of 15,000 to 20,000 jobs.

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Even the late U.S. Sen. Ted Stevens, a pro-mining Alaska Republican who never hugged a tree in his life, vowed to block the Pebble Mine any way he could, because it was simply “the wrong mine in the wrong place.”

And, in effect, that was the decision the EPA reached in 2014 after a three-year-long, big-picture review of what’s likely to happen if you dig and crush rock on such a scale in a watery, fragile environment, then store the waste behind earthen dams in terrain that’s prone to earthquake.

Concluding that significant harm to the fishery was nearly inevitable — and the odds of catastrophe unacceptably high — the EPA took up a rarely used provision of the Clean Water Act and reached a determination that said, in effect:

Guys, there’s no point in having you develop a detailed mining proposal, then shepherd it through the ordeal and expense of a permitting process, when it’s so clear at the outset that permission ultimately will be denied.

Northern Dynasty replied with three lawsuits. On one of these — a procedural challenge to some of EPA’s consultations — the company won a temporary injunction. That’s the lawsuit EPA said Friday it has settled.

The company will now drop its other claims; the agency will stop proceeding toward a final determination against the Pebble Mine; the project will be considered in the traditional, long-form permitting process.

EPA chief Scott Pruitt claimed the settlement was motivated by a desire “to steer EPA away from costly and time-consuming litigation.” Critics replied that EPA “capitulated” under pressure from Pebble’s lawyers.

To my eye, the facts suggest neither. This looks like nothing more than a simple giveaway to  a foreign mining company, overriding EPA’s scientific findings — untouched by the settlement terms — and the wishes of clear majorities of Alaskans (who, by the way, gave Donald Trump a popular-vote victory in November).

According to the  Alaska Dispatch News, the case wasn’t going all that well for the company.

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The 2014 injunction was a limited, procedural victory that directed EPA to pause in working toward its final determination until certain issues had been litigated, but these were about the openness of EPA’s process, not the substance of the findings. Also, the judge rejected other Pebble claims while directing its lawyers to “rewrite the complex lawsuit ‘as soon as possible.’ ”

It is far from certain that the Pebble Mine can survive review under “regular regulation,” either. Or, for that matter, that the company will apply for permits, although Pruitt’s announcement invited it to do so; investment partners have fallen away over the years.

What’s crystal clear about Bristol Bay today is that the road to resolution is now longer, steeper and more expensive for all concerned — including taxpayers.

Implications for Minnesota mines

Minnesotans who have watched PolyMet Mining Corp.’s NorthMet project trudge along have a good sense of what that route looks like: a protracted process in which the company submits its analyses, which are found faulty, undergo revision, are resubmitted … rinse, lather, repeat.

But there is now a key difference — in the PolyMet matter, EPA was often critical of both the mining company’s work and the Minnesota Department of Natural Resources’ approvals.

It’s a different EPA in the Trump era, and last week’s settlement is widely seen as a signal that despite hardrock mining’s perfect record of causing serious environmental harm, the agency will no longer be so nitpicky in applying the law, whether to Pebble or to PolyMet — back in the news with findings that its suggested “damage deposit” may fall ridiculously short of what’s needed.

For those who love Minnesota’s canoe country, and especially those who also make their living from it, a bigger concern must be what this shift bodes for Twin Metals Minnesota and its ambitions for a vast mining complex within the watershed of the Boundary Waters Canoe Area Wilderness and Voyageurs National Park.

Last year, TMM had two federal setbacks that seemed to doom this bad idea, which is strongly opposed by Gov. Mark Dayton, other influential Minnesotans and considerable public opinion. The Bureau of Land Management and the Forest Service decided against renewing the company’s lapsed mineral leases, and also to determine at long last whether any sulfide mining should be permitted within the quarter-million acres of the Superior National Forest that isn’t already protected as wilderness.

This is an issue that’s been kicked down the road for decades since the BWCA protections were finally resolved, and it seemed at last that a Pebble-type decision had been reached (although, of course, TMM immediately challenged the move in court).

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In late April, according to the Washington Post, Minnesota Reps. Rick Nolan and Tom Emmer, a Democrat and a Republican, met with Interior Secretary Ryan Zinke to ask that these sensible and overdue decisions be reversed.

Why Alaskans oppose Pebble

It is fair to say that the Pebble Mine has been even more deeply and bitterly controversial in Alaska than the PolyMet and TMM projects have been in Minnesota, even though Alaska has a mining/logging/drilling culture that’s at least as resistant to environmental protections as ours.

Opposition to Pebble is often characterized as being tribally led and/or orchestrated, and certainly native Alaskan groups have been vocal about the threat to their livelihoods and even the continued existence of their villages. It’s also true that the tribes were prominent among Alaskans pressing hard against EPA’s initial reluctance to involve itself in a prepermitting review.

But there are concerns well away from villages in the project’s environs. There is the matter of transporting crushed ore all the way to Cook Inlet for processing, either by pipeline (for slurry) or by truck, over lots of new roadway, for coarser material. There’s the issue of groundwater withdrawals that might be four times larger than current usage by the city of Anchorage.

And always there is the threat to the fishery: the world’s largest sockeye salmon run; plus four other types of Pacific salmon, as well as herring, in commercially harvested quantities; plus sportfishing for salmon, trout, whitefish ….

Ted Stevens is long gone, but the mine’s current political opposition includes Gov. Bill Walker, an independent. The congressional delegation, all Republican, takes the temporarily safe line that Alaska shouldn’t trade one resource for another — precious metals for fisheries — and that if Pebble can’t operate without harm, it shouldn’t go forward.

Polls generally show large pluralities to significant majorities of Alaskans opposing the mine, but here’s one very clear marker: In the 2014 elections, a referendum requiring that any Pebble mine earn approval of the Alaska legislature — as well as the various permitting agencies — passed by a two-to-one margin, according to Devin Henry writing in The Hill.

Most recently, a coalition of more than 200 sportsmen’s groups across the country have stepped up with an argument that “millions of Americans eat, fish for, or make their living off of Bristol Bay’s wild salmon,” including nearly half the world’s annual sockeye harvest. Other points:

  • Some 14,000 people are employed in commercial and recreational fishing businesses centered on Bristol Bay.
  • 29,000 fishing trips each year arrive in the region, and the area also draws hunters seeking bear, moose, caribou and waterfowl.
  • Overall economic activity totals $1.5 billion directly from the salmon fishery and $160 million per year from tourism and other related business activity.

And so on. Wouldn’t you think these arguments might cut some ice with a president pledging to create jobs, shore up the economies of rural communities — and put foreign companies on notice that they can’t push the U.S. government around?