FAIRBANKS – The U.S. Environmental Protection Agency endeavor to use a presumed authority under Section 404(c) of the federal Clean Water Act to pre-emptively ban the permits required to develop the Pebble Mine cast a dark shadow over the Arctic International Mining Symposium, a mining convention held in Fairbanks every other year.
“We have a federal government that, as far as I am concerned, contains people that are intent on shutting down our state’s economy,” Pebble Partnership Chairman John Shively declared during an impassioned speech at the symposium.
From junior mining companies, who must assuage the fears of potential investors in an already tight equity market, to the state governor, who sees EPA’s actions as another means for a heavy-handed federal government to inhibit Alaska’s ability to manage its resources, Pebble was a primary topic of water cooler discussions and keynote speeches at the biennial symposium.
“The federal government’s overreach today, it is extreme, it is unprecedented,” Alaska Gov. Sean Parnell told the mining community during an April 10 presentation. “We are pushing back on EPA over Pebble on what looks like a 404(c) pre-emptive veto.”
Compounding the anxiety, on the opening day of the biennial symposium, Rio Tinto announced it is giving its 19.1 percent interest in Northern Dynasty Minerals Ltd., owner of the Pebble Project, to two Alaska charitable foundations.
Anti-Pebble environmental groups hailed the exit of the last global scale mining company as a sign of the imminent demise of the enormous and controversial copper project.
“With Rio Tinto’s departure following close upon Anglo American’s withdrawal last year, there is currently no major funder backing the Pebble mine proposal,” said Bonnie Gestring, Earthworks. “Rio Tinto’s divestment from Pebble may not be the final nail in the coffin, but it’s surely one of the last.”
Pebble Partnership CEO Tom Collier, however, informed attendees of the Arctic Mining Symposium that the EPA, environmental non-governmental organizations and politicians aligned against Pebble are not going to bury his company’s right to have mine plan vetted by the United States’ permitting regime without a fight.
“We are going to win this battle and I am going to be here next year talking about how we are ready for hiring people back at Pebble so we can move ourselves into permitting,” he vowed.
When Collier moved into the executive office of the Pebble Partnership on Feb. 1 he had two primary objectives: secure a new partner to fill the void left by the departure of Anglo American and get the Pebble project into permitting.
Overshadowing both of these directives is EPA’s efforts to kill the massive copper-gold-molybdenum project prior to permitting.
The Pebble CEO said he has been involved with extensive conversations with likely candidates to fill the missing half of the Pebble Partnership.
“Our goal is to have a partner by the end of the year. So, by this time next year we are putting all those people we laid off and contractors laid off, back to work,” he said.
Good scienceCollier, a Democrat that managed environmental policy under President Bill Clinton, admitted his political background was vastly different than most of the resource development types attending his presentation.
Over his 40 years as an attorney in Washington D.C., Collier earned a reputation for having a penchant for federal environmental law and bringing adversaries together.
As chief of staff to U.S. Department of the Interior Secretary Bruce Babbitt, Collier was charged with managing much of the environmental policies being introduced by Vice President Al Gore.
“I got to sit beside two of the giants of environmental protection in American political history,” Collier touted. “I am the guy that managed the spotted owl and timber crisis in the Pacific Northwest; I managed the restoration of the everglades in Florida. So, I have seen these tough environmental issues from both sides.”
Though he helped push environmental policy, Collier believes that development and conservation can, and should, co-exist.
“What Gore and Babbitt taught is that natural resource development and environmental protection can go hand-in-hand – you don’t have to choose one or the other,” Collier said.
The other thing he learned from his environmental mentors is “science is king.”
“The way you determine good science from bad science; good science from junk science; good science from biased science is you do a rigorous, transparent environmental impact statement,” he said. “What is happening today is the federal government and the environmental community is trying to keep people from getting into that rigorous, transparent process.”
Collier said the Pebble Partnership has the good science to show an environmentally sound mine can be built at the enormous copper-gold-molybdenum deposit in the Bristol Bay Watershed of Southwest Alaska.
“We have got the science and engineering to show that this mine can be built in a way that is not going to be damaging to the environment,” he told the crowd. “We want to get into the process and that is where we are running into some political issues.”
Political undercurrentCollier said his four decades as an attorney in Washington D.C. has taught him that an undercurrent of politics is always present in controversial environmental issues and it seems that Sen. Mark Begich, D-Alaska, whose seat is up for election this fall, is stirring the waters at Pebble.
The Pebble CEO informed the crowd that he has first-hand knowledge that as of December of last year EPA Administrator McCarthy had reservations about initiating the Section 404(c) process for Pebble but by the end of February she was not only swayed to initiate the review but strongly in favor of it.
“So, something happened between the end of the year and the 28th of February,” he noted.
During that stretch, Sen. Begich shifted his public stance on Pebble from neutral to strongly against development of the mine.
“He came out against the mine in a way that he intentionally left the impression that he was also in favor of EPA using this pre-emptive 404(c) authority to kill the mine,” Collier said.
Begich – who previously avowed “that there is no room, no option, no opportunity for any pre-emptive strike” of Pebble permits by EPA – is now refusing to challenge the agency’s preparation to make that strike.
“It is clear to me that the senator wants to have one foot on each side of a fence – he wants to appear as though he is in favor of development in the state of Alaska and yet he doesn’t want to attack EPA for doing things that can stop development in the state of Alaska,” Collier said. “I see it as my role to turn that fence he is straddling into barbed wire.”
During an Apr. 11 teleconference, Sen. Begich leaned further toward EPA’s side of the fence.
“I have made it very clear that whatever they are doing in regards to 404(c), it better be very narrowly focused (to) that deposit only,” Begich responded to a query by Pebble Chairman Shively.
“We cannot afford to have politicians that pre-judge projects and pick projects prior to them being explained in the public and going into the permitting process – that is just wrong!” Shively, a longtime Democrat, admonished.
Federal predeterminationWhether politics factored into EPA’s recent actions at Pebble may be circumstantial, however, there is a clearer line of evidence that the agency was working behind the scenes with individuals and environmental groups against development of the Southwest Alaska copper-gold-molybdenum project.
“One of the things that is most discouraging about what we have seen with EPA and the watershed assessment is how environmental groups are colluding with the government to shut down the economy,” Shively told the audience at the Arctic Symposium.
This hand-in-hand relationship between anti-Pebble advocates and the federal regulator is evidenced in some 300 pages of documents the Pebble Partnership obtained with U.S. Freedom of Information Act requests.
These documents show that Phillip North, an EPA ecologist based in Kenai, Alaska, was advocating for 404(c) action with agency colleagues as early as 2008. This pre-dates the 2010 request by Alaska Native groups that EPA has said was its motivation to consider such actions.
“Two years prior to the event that EPA has always said led to the watershed assessment, one of their employees was colluding with our opposition and colluding internally to do a pre-emptive veto,” Collier said, alluding to emails from the time.
The documents show that North and others within EPA were in regular contact with a number of Pebble opponents to work out a strategy for carrying out the Bristol Bay Assessment and potentially enforcing a pre-emptive ban on Pebble permits.
The Pebble Partnership has forwarded this information to the EPA Office of Inspector General, calling on the independent watchdog within the federal environmental agency to investigate.
“The notion this was predetermined, I believe, is soundly established in these documents; and certainly well-enough established for the inspector general to do an investigation,” Collier said.
While the documents clearly show that at least some people within EPA were considering CWA 404 action as early as 2008 and that the agency has since been working closely with environmental non-governmental organizations and other Pebble antagonists in positioning for a valid case to initiate a pre-emptive ban of Pebble permits, the EPA Inspector General has yet to agree to launch an investigation.
The Pebble Partnership is not resting all of its hopes on a fair investigation by the EPA watchdog, Collier added.
“We are going to file suit, we are going to push this inspector general investigation; we are filing an extensive scientific response to the letter they sent me on the 28th of February,” he told symposium paticipants.
The State of Alaska, which has been actively pushing back against the federal government on several fronts, is also expected to take legal action against EPA in the coming weeks.
“The EPA policy to decide something first and then justify it has to be stopped,” Parnell said during his Apr. 10 speech. “I call it the fight against federal predetermination.”
Hanging togetherCollier warns that if the EPA succeeds in using CWA 404(c) to ban the permits at Pebble, the precedent will result in a power-grab that will affect development in Alaska and across the United States.
“I don’t think this is any longer a Pebble Mine issue,” he said.
During his speech at the Symposium, Shively rallied the resource development community to speak in a united voice.
Drawing from the wisdom of U.S. founding father Benjamin Franklin, he said, “If we don’t hang together, we are all going to hang separately.”
The Pebble chairman said the fate of the resource industry in the United States and, by extension, the economic well-being of the country is at stake.
“If we keep doing what we have been doing then the United States can become a Second World country – I am 70 years old, but it could still happen in my lifetime,” he said.
“I am determined. I am not going to give up on Pebble, I am not going to give up on Alaska, and I don’t expect any of you, either, to give up. In the end this fight is not about us; it is about our children and grandchildren, and that is why you have to keep it up,” he added.
Though the task seems daunting, Collier is confident the Pebble Partnership will succeed in getting into and through the federal permitting process.
“I enjoyed my practice, we enjoyed our life in Washington, but we have taken this job because I believe we are going to get through this; we are going to get a permit, ultimately,” said the Pebble CEO. “But, one thing we are going to do in the process is we are going to stop what is going on with EPA.”