Court issues injunction delaying EPA process on Pebble

U.S. District Court Judge H. Russel Holland has granted a preliminary injunction that temporarily stops the U.S. Environmental Protection Agency from  proceeding with a 404(c) process that could result in restrictions at the Pebble deposit.

The preliminary injunction relates to a civil suit the Pebble Limited Partnership filed in early September alleging EPA violated both the Federal Advisory Committee Act (FACA) and the Administrative Procedure Act (APA) when determining whether it would initiate Section 404(c) of the Clean Water Act to impose restrictions at the Pebble site.

PLP claims that anti-mining parties helped EPA write its Bristol Bay Watershed Assessment, gave advice to EPA on how to respond to Alaska Gov. Sean Parnell, and held briefings directly with EPA’s Region 10 administrator.

In making his decision, Judge Holland considered the merits of the case along with possible harm and hardship to either party for allowing it to go forward. Based on PLP’s brief to the court, Holland said PLP was “unlikely to succeed” on two of its three allegations, but that it had raised a question on the third allegation serious enough to justify litigation. Holland added that no harm would come to the EPA by allowing the court to hear the case, as it is “only a brief delay.” In contrast, he said the plaintiff would suffer “irreparable harm” if it is not allowed to litigate this case before the EPA finalizes its 404(c) process.

Holland instructed attorneys for PLP to pare down the brief, noting that the 138-page document, complete with 536 points, was “ridiculous” in length and that he would not ask the court or the defendant to go through the “chore of dealing with the present complaint.”

Holland also asked attorneys for both sides to make a plan for moving forward procedurally to resolve EPA’s existing Motion to Dismiss and the submittal of the new streamlined FACA complaint, noting “nothing will happen on this case until after the first of the year.”

Where is EPA in the 404(c) process?

Earlier this year the EPA published a Proposed Determination, which outlined its proposed restrictions. The EPA received more than 671,000 public comments on the documents, and has been reviewing those since the comment period ended Sept. 19. The next step is to prepare a Recommended Determination, which would be difficult for the EPA to do without relying on the Bristol Bay Watershed Assessment. Therefore, this process will be delayed until the FACA case is settled. EPA had already extended the typical time period for this phase of the 404(c) process until February 4, 2015, citing the amount of time needed to review the multitude of public comments. Alternatively, the agency could withdraw the Proposed Determination at any time, thereby halting the 404(c) process entirely.