Could Chevron decision affect Pebble mine?

In June 2024, the U.S. Supreme Court overruled a longstanding precedent called “Chevron deference” that had given federal agencies a lot of authority for how they implemented complex laws like the Clean Water Act. The Court took this action in a case entitled Loper Bright in which the Court reviewed an interpretation of the Magnuson-Stevens Act by the National Marine Fisheries Service.

Post Loper Bright, federal judges will have more of a say in federal administrative decision-making, an area that has been the purview of agencies since the Chevron decision 40 years ago. The effect could be a curtailing of agency powers and an uptick in lawsuits against agency actions.

Several federal agencies were involved in the permitting phase of the Pebble mine, including the EPA, U.S. Army Corps of Engineers, U.S. Fish and Wildlife Service, and the National Marine Fisheries Service.

It will take time to fully understand how the Supreme Court’s decision could affect agency actions related to Pebble permitting. For now, if an agency relied on the Chevron deference to support an action, it isn’t automatically overruled. However, federal judges will play more of a deciding role in the future to interpret whether agencies have acted within their “statutory authority.”

The effect of Loper Bright may become evident as current suits brought against EPA by Northern Dynasty Minerals, the State of Alaska and two Alaska Native village corporations move through the courts.