If there’s one thing that’s certain about the Pebble project, it’s that nothing is certain. The project has engendered high interest, both for and against, for years. And its extreme swings of fortune have provided both sides extreme highs and lows.
The Pebble project has survived several events that could have sunk other projects: major partners have walked, the EPA tried to initiate protections in Bristol Bay, and now the Corps of Engineers has said that 1) the project is not in the public interest, and 2) the compensatory mitigation plan submitted by the Pebble Limited Partnership (PLP) is insufficient.
The permit denial on November 24 came as a nasty Thanksgiving surprise to investors, and a reason to be thankful for those who have been fighting the project for decades.
Many had assumed that a positive-sounding Final Environmental Impact Statement (FEIS) meant that a positive Record of Decision (ROD) would be forthcoming. However, regulators at the Corps of Engineers have always been careful to state that an FEIS informs a decision, but is not the decision. Just before the FEIS was published in July 2020, David Hobbie, Chief of the Alaska District’s Regulatory Division, told reporters that the FEIS, “is the final evaluation of all the info we have. The ROD is the conclusion of the process. There might be pieces of the final EIS that talk about impacts, but the ROD is the final say on drawing conclusions on whether we issue a permit or not.”
In fact, there are many other components besides the FEIS that must be in place for a positive ROD, and we have discussed some of them previously – like compliance with Endangered Species Act guidelines.
The Pebble Limited Partnership (PLP) and parent Northern Dynasty Minerals (NDM) have 60 days – until January 25 – to appeal the Corps’ decision. It intends to take the bulk of that time to “prepare a comprehensive and substantive appeal.” NDM can’t add any new information or analyses (like a revised Compensatory Mitigation plan) to the record. According to the appeal form, it is limited to a review of:
- the administrative record – a compilation of all materials that were before the federal agency at the time it made its final decision in the NEPA review process
- the Corps memorandum for the record of the appeal conference or meeting, and
- any supplemental information that the review officer has determined is needed to clarify the administrative record.
Who reviews the appeal?
The Corps has 30 days to determine if the submitted appeal is acceptable. If so, a Review Officer has an additional 60 days to determine if the appeal has merit or not. In this case, the review will be conducted by the Corps of Engineers Pacific Command in Honolulu, Hawai’i. Colonel Kirk Gibbs took command of the Pacific Ocean Division in July and oversees a workforce of 1600 with a mission that extends from Japan and South Korea to Alaska, Hawaii, American Samoa, Guam, and the Commonwealth of the Northern Mariana Islands.
Either Gibbs or a delegated Review Officer will be checking that the permit decision was made according to all guidelines and regulations, and that it is supported by the Administrative Record. As the Division Engineer, Gibbs will make the appeal decision. According to USACE guidelines:
The [Pacific Command] division engineer will disapprove the entirety of or any part of the [Alaska] district engineer’s decision only if he determines that the decision on some relevant matter was arbitrary, capricious, an abuse of discretion, not supported by substantial evidence in the administrative record, or plainly contrary to a requirement of law, regulation, an Executive Order, or officially promulgated Corps policy guidance. The division engineer will not attempt to substitute his judgment for that of the district engineer regarding a matter of fact, so long as the district engineer’s determination was supported by substantial evidence in the administrative record, or regarding any other matter if the district engineer’s determination was reasonable and within the zone of discretion delegated to the district engineer by Corps regulations.
If the appeal is found to have merit, it goes back to the Alaska District “with specific instructions to review the administrative record, and to further analyze or evaluate specific issues.”
The decision made at this point is final, with no further appeal possible. If the Alaska District determines that a reconsideration of the Administrative Record would be substantial, it is possible that there would be a new “public notice, and/or preparation of a supplemental environmental analysis and decision document.”
Want even more details on the timelines and what-ifs? View the Corps’ full document on the process.
No quick fix
Clearly the appeal process takes time and might be in limbo for five months or more. (It can take up to a year if there is a site visit, for example.) Even if PLP were to win an appeal and a subsequent reconsideration from the Alaska District, it doesn’t mean an automatic permit.
The process for developing a positive ROD would take time. Leading up to the permit denial, there were a number of required components that were in progress; those didn’t have to be completed since the permit was denied. Granting a permit would require the Corps to complete those items, including formal consultation on the National Historic Properties Act (NHPA) and the Endangered Species Act (NOAA Fisheries and US Fish and Wildlife Service). The Coast Guard would have to complete its process for a bridge permit. The State of Alaska would have to determine its 401 Certification.
Additionally, in the face of a permit denial, certain resources and procedures are no longer in play. AECOM, the 3rd party contractor that led the EIS process, is finalizing some administrative tasks and then likely will be off contract. Formal consultations with NOAA and US Fish and Wildlife Service have ceased. Those have specific timeframes, which would have to presumably start all over. And it’s unclear how long the pebbleprojecteis.com website, developed by AECOM, will be maintained. A Corps’ spokesman says it will be available until at least December 31, 2020.*
Developers, investors and pro-Pebble supporters in Alaska are holding out hope for the appeal. But opposition to the project continues to unite people across the political spectrum – from Donald Trump Jr. to Jane Fonda, from Joe Biden to Senators Lisa Murkowski and Dan Sullivan.
The Thanksgiving surprise has given Pebble opponents new energy to put the project to rest for good. That includes ideas such as a federal/state land swap, or the resurrection of EPA prohibitions at the deposit site.
In the meantime, several law firms are lining up to file small class action claims on behalf of investors (example). These suits contend that NDM made false and materially misleading statements that caused damages to investors when NDM stock lost half its value at news of the permit denial.
Fortune tellers and investment advisors have inaccurately predicted the outcome of this project before, and the crystal ball is still cloudy. Sleeves are rolled up, and the work continues on both sides.
12/15/20 Update: The Corps of Engineers has confirmed that the pebbleprojecteis.com website will be taken down at the end of the month. An Alaska District spokesman said the Corps is planning to make the EIS and ROD documents available elsewhere, but it is still in the planning stages.