State of Alaska petitions to join Pebble in civil suit against EPA
The State of Alaska Office of Attorney General has petitioned the Alaska District Courts to join the Pebble Limited Partnership (PLP) as co-plaintiff in a civil suit against the U.S. Environmental Protection Agency (EPA). At issue is EPA’s use of its authority under Section 404(c) of the Clean Water Act to consider restrictions or limitations on development at the Pebble deposit in Bristol Bay. EPA is proceeding with the 404(c) process, and is currently finalizing a “Proposed Determination” that will detail its suggestions for limiting/restricting development.
In its motion to intervene in the civil suit against the EPA, the State contends that EPA’s use of 404(c) will set a precedent of vetoing projects before they enter the typical permitting process. The EPA asserts that the Clean Water Act gives it the authority to pursue 404(c) action before, during or even after the permitting process.
The State of Alaska Office of Attorney General characterizes its role in the case as an effort to “prevent the EPA from taking land by prematurely limiting development before the state’s permitting processes have a chance to work.” Attorney General Michael Geraghty said that the EPA actions were troubling because it “sets precedent for the EPA to take land anywhere in the United States and prematurely limit development of a valuable resource.”
Pebble Watch spoke with Assistant Attorney General Ruth Hamilton Heese regarding the State’s motion, particularly to clarify the State’s use of the term “taking land.” While she declined to talk about the specifics of the case, Heese did express that the State is concerned about EPA’s actions both from a land-owner standpoint as well as a regulatory standpoint, and that the “legal principle of taking land is also at play.” According to Heese, since the State owns the land, and since its designated use is for mineral exploration, the EPA’s actions are seen by the State as “basically undoing a land use.”
This is not the first time that the State of Alaska has joined PLP as a plaintiff. In 2011, the State intervened to join Pebble in a lawsuit to stop the “Save Our Salmon” initiative, which was a Lake & Peninsula Borough initiative related to restricting development of large-scale mines. That initiative was allowed to be placed on the ballot, where it passed by a small margin. The State and PLP joined in a suit to invalidate the results of the initiative. Alaska Superior Court ruled in their favor in March 2014.
In order to join the current suit against EPA, the State has to make the case that Alaska’s interests would be affected by a decision and that the current plaintiff (PLP) would not represent all the interests of the State.
Next steps
PLP and EPA have an opportunity to respond to the State’s request. PLP has already said that it has no issue with the State as a co-plaintiff. The EPA said it would wait to respond until it has the opportunity to review the motion. Final say on whether the State can join the suit is up to the Alaska federal district court.