The following editorial first appeared in the Alaska Journal of Commerce:
In a remarkable twist to the decade-long saga over the Pebble Mine, a federal judge ordered the Environmental Protection Agency to halt its work on the effort to preemptively veto the project before any plans have been submitted.
It is a ruling that should be cheered by everyone in the resource development community — in Alaska and around the nation — as the beleaguered company carries on its legal challenges against the EPA’s attempt to establish precedential powers under the Clean Water Act that will no doubt eventually go beyond Pebble and chill investment across the country.
The heart of this case — and why Judge H. Russel Holland’s ruling is significant — is the routine behind-the-scenes collaboration between government agencies such as the EPA and anti-development interest groups to fix the outcome of decisions.
The Freedom of Information Act responses obtained by the Pebble Limited Partnership and relied upon by Holland in issuing his injunction Nov. 24 reveal an EPA process that dates back to at least 2008, when Phillip North of Region 10 began laying out a road map for stopping the project.
One of the major arguments the EPA has advanced over the years — since it announced in 2011 it would conduct an assessment of mining impacts in the Bristol Bay watershed — is that the agency was compelled to undertake the process because it had been asked to by Alaska Native groups in the region.
However, the emails by and among EPA officials and anti-Pebble groups reveal that the idea for having Native groups ask for the assessment originated because the agency knew it could not independently begin the process without a permit application, and so the plan was hatched to have stakeholders in the region make the request.
What is abundantly clear from the emails and records obtained by Pebble is that the EPA was never committed to an unbiased evaluation of mining in the region and in fact was seeking evidence to support its predetermined outcome.
Reaching a conclusion before conducting the research is in fact the opposite of science, and the anti-Pebble groups and EPA officials who state the Bristol Bay assessment is a scientific document should rethink that claim.
Pebble may very well be the wrong mine in the wrong place, but without discussing the merits of the project it is apparent that the overzealous and potentially unlawful effort to preemptively stop the mine may end up doing more harm than good to its opponents.
If Holland rules in Pebble’s favor and against the EPA, the entire multi-year assessment process and millions of taxpayer dollars will have been wasted, leaving the leaders of that effort with no one but themselves to blame.
When a judge issues an injunction, the key pillar of the decision is whether the party seeking it is likely to prevail on the merits of the underlying claim. Holland’s issuance of an injunction against the EPA reveals that he believes this to be case.
It is also important to note that the same Judge Holland in September dismissed another case brought by Pebble against the EPA challenging the Bristol Bay assessment as not ripe for consideration.
Holland’s decisions reaching opposite outcomes in the two Pebble cases reveal he is considering each case on the merits according to the law, which is the sort of unbiased demeanor that federal agencies such as the EPA are also obligated to do on issues such as Pebble.
His injunction against the EPA and its process for producing the Bristol Bay assessment is a sign that the agency failed to meet that neutral obligation and may finally be held to account for it.