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The Environmental Protection Agency is not particularly popular in Alaska, where it is often a symbolic lightning rod that represents federal intervention in state resources. Like national Republicans needing to deny climate science, it is a political fact of life that Alaskan politicians of both major parties need to express opposition to the EPA.
Take Democratic Senator Mark Begich, for example, who has pledged, among other things, “to stand up to the EPA for blocking mines between Ketchikan and Kotzebue.” On the Republican side, Dan Sullivan is seeking his party’s Senate nomination by touting his conservative record as Attorney General, noting that he “fought the EPA from shutting down our state.”
Senator Begich’s rhetoric notwithstanding, he is on the same side as many environmental and fisheries advocates with respect to proposals for large-scale mining in Southwest Alaska. He has stated that the proposed Pebble Mine presents “too many potential long-term impacts to a fishery that is pretty critical to that area but also to Alaska, to world markets,” calling the project “the wrong mine, wrong place, too big.”
In this respect, while the Senator is “skeptical of federal overreach” as a procedural matter, he would presumably be supportive of a possible outcome of a substantive review the EPA initiated last February. The agency is looking into potential discharges associated with mining at the Pebble deposit in the headwaters of Bristol Bay. The review is being conducted under Section 404(c) of the Clean Water Act and could lead to a subsequent decision to veto permitting of the mine.
In March, the Supreme Court declined to hear an appeal in the Mingo Logan lawsuit involving Appalachian coal mining. As discussed in my April 5 Legal Roundup blog post, that case challenged the timing of 404(c) action by the EPA in West Virginia. Finding that debris from the “mountain top removal” mine would destroy miles of unspoiled streams, endanger wildlife and harm neighboring communities, the agency had used its 404(c) authority to overrule the issuance of a permit by the Army Corps of Engineers several years earlier. The legal challengers argued that it was too late for the EPA to act once the permit had been issued.
In declining to hear the appeal, the Supreme Court left intact a decision by a federal appeals court that ruled broadly in favor of the EPA’s action. Specifically, the appeals court determined that Section 404(c) “imposes no temporal limit” on the agency, which is authorized exercise its veto “whenever” it determines that an adverse effect may result from a discharge.
The Mingo Logan case is relevant to Alaska because Section 404(c) is the statutory basis for the review initiated by the EPA in February. As expected, the Pebble Partnership has sued the agency, arguing that it lacks authority to commence a 404(c) review ahead of the company’s formal request for a permit – in other words, that the EPA acted prematurely, essentially the opposite of the Mingo Logan claim that the EPA acted too late.
Mingo Logan will be an important precedent in support of the EPA ‘s authority to act before, as well as during or after, a formal permitting process.
A few days ago, a federal appeals court issued another mountain top removal decision in favor of the EPA. In National Mining Association v. McCarthy, mining interests and several state governments had challenged a coordination process that the EPA and the Army Corps adopted in 2009 to facilitate their consideration of permits under Sections 402 and 404 of the Clean Water Act. This was largely a procedural ruling and is not as directly relevant to the Pebble project, but represents another legal victory for the EPA and the breadth of its authority under these provisions of the Clean Water Act.
Note: This article is an excerpt form a July 16, 2014 post on the author’s Northern Passages blog.