Lawsuits, legislation and finances: Pebble news roundup  

In April 2024 the U.S. Army Corps of Engineers (Corps) reaffirmed that it wouldn’t issue a key permit for the Pebble project. The decision culminated a years-long appeals process that followed the Corps’ initial 2020 decision to deny developers a Clean Water Act (CWA) 404 permit.

In January 2023, the EPA released a Final Determination imposing restrictions and prohibitions at the Pebble deposit that effectively preclue the mine’s development. The Final Determination was the culmination of nine years navigating twists, turns, and pauses in the CWA 404(c) process, which gives the EPA authority to stop a project if it will cause unacceptable adverse effects on certain water supplies or fisheries.

Developer Northern Dynasty Minerals (NDM) and its Pebble Limited Partnership are not taking “No” for an answer, however. NDM  is suing the federal government to try and get a reversal of EPA’s Final Determination. The State of Alaska has brought a separate, similar suit. Two Alaska Native Village Corporations – Iliamna Natives Limited and Alaska Peninsula Corporation – are also suing the EPA, citing lost economic opportunity from contracts they would have had with Pebble developers. They are asking courts to declare the CWA 404(c) section as “an unconstitutional delegation of legislative power to EPA.”

In May, several groups filed three separate motions o intervene in NDM’s suit challenging the EPA. They also moved to intervene in the State of Alaska lawsuit. They include a group representing several Bristol Bay tribes, businesses and commercial fishermen, a separate coalition of 15 conservation organizations, and Trout Unlimited. The motions are still pending.

In June, NDM filed a motion to amend its original complaint against the EPA, seeking to add the Corps to the proceedings for its 2020 denial of the CWA 404 permit.

Northern Dynasty finances

Without a major investor since 2013, NDM has employed various financing methods to continue its pursuit of the project, along with costly litigation. In July 2022, it announced a Royalty Agreement that would provide $60 million over two years in return for the right to receive a portion of the future gold and silver production from the mine. As of July 2024, NDM has received $24 million. It has amended the initial Agreement to extend the payment timeline another year for the remaining $36 million. This investor is essentially paying now for a future stream of payments from Pebble. The cash investments will earn the investor an increasing percentage of the returns from gold and silver mined at Pebble.

Legislation

Pebble opponents have been vocal that the EPA’s Final Determination is not a permanent protection for Bristol Bay. Depending on the outcome of current litigation, they may be correct. In May 2024, Representative Mary Peltola (D-Alaska) introduced the “Bristol Bay Protection Act” in the U.S. House of Representatives. If passed, the act would give the EPA’s Final Determination the force and effect of law and thereby insulate it from changes by future administrations (though not future Congresses).