Who Produced the Draft EIS?
Last month the Pebble Limited Partnership (PLP) launched new advertising efforts to state its case that the federal permitting process is working as designed and that the Corps’ Draft Environmental Impact Statement (DEIS) “shows a clear path forward for permitting…” PLP’s full-page ad in the Anchorage Daily News, along with a 20-page direct mailer, also included logos of 16 cooperating agencies and tribes, ranging from The Office of the President of the United States to Curyung Tribal Council.
However, some agencies and tribes listed were surprised by this inclusion and felt it misleading and confusing to the public, especially since the mailer included the headline “Who Produced the Draft EIS?” above the logos.
Unauthorized Use
The U.S. Department of the Interior (DOI), which has been very critical of the Draft EIS, sent a cease and desist letter on Friday, warning PLP to avoid use of the agency logos under its purview. These include the Bureau of Safety and Environmental Enforcement, Fish and Wildlife Service and the National Park Service. Use of the logos “implies that your organization receives assistance or is somehow affiliated” with those agencies, wrote Lisa Kilday, Attorney-Advisor for the DOI. “It is misleading for PLP’s advertisements to attribute ‘production’ of the DEIS to the bureaus, thereby suggesting that the Department or other federal agencies endorse the DEIS. The bureaus have participated and will continue to participate in the NEPA review of the proposed Pebble Mine Project in their respective roles as cooperating agencies. But their participation does not rise to the level of producing or controlling the documents released by the USACE, and their involvement in the environmental review of the proposed Pebble Mine Project does not represent the bureaus’ endorsement of the DEIS or any future FEIS.”
For its part, PLP explained it was trying to create visual interest with the logos. “We wanted to visually portray the agencies that have a role to play with the NEPA review process,” said Mike Heatwole, Pebble Limited Partnership’s Vice President of Public Affairs. “When we recognized that it caused concerns, we immediately pulled back on it.” PLP disagrees that the use of the logos was misleading, but has agreed not to use them in the future. It has posted an updated version of the mailing at its website, listing cooperating agencies under a new title, “Who Are the EIS Cooperating Agencies?”
Surprised and angered
One of the reasons PLP’s use of the logos in advertising was so surprising to some of the groups listed relates to the limited role cooperating agencies and tribes play in the process. Each entity serves in an advisory capacity, providing very specific review, analysis and comment in certain predefined areas of expertise. No matter how much a cooperating agency might agree or disagree on its content, the EIS is a Corps’ document. As the lead agency for the NEPA process for the proposed Pebble mine, the Corps has the final say.
Thomas Tilden, First Chief of the Curyung Tribal Council said the Corps restricted their participation to subsistence issues, when they wanted to weigh in on other areas too, such as hydrology. To be listed as a “producer” of the draft EIS was infuriating, said Tilden, as it suggests the agencies and tribes played a much larger role in its development. “It gives the false impression to the public that all these groups are on board.” Tilden and George Alexie, President of the Nondalton Tribal Council, responded to PLP’s advertising with their own op-ed, writing that “nearly every entity whose logo appears in the ad…has had major criticisms of the environmental review, some going so far as to call on the Army Corps for a complete re-do.”
Cooperating agencies from the State of Alaska did have plenty of concerns with the DEIS, as detailed in a 96-page consolidated list of comments. However, Kyle Moselle, Associate Director of the State of Alaska Office of Project Management and Permitting, said he wasn’t concerned when he became aware of PLP’s mailer. “Pulling the EIS together is a monumental task. When the Department of Natural Resources accepted the invitation to be a cooperating agency, we explained we wouldn’t be writing any portion of the EIS. Certainly we are assisting the Corps as they are writing it. We’ve asked for specific edits and for sections to be updated. It is the Corps’ document though.” Moselle acknowledged the expertise and professionalism of the Corps, saying that the process with cooperating agencies has been thorough and dynamic. “They’re not just giving us one shot to weigh in. They are coming back around and making adjustments.”
So who did produce the Draft EIS?
According to the Corps, the answer is… the Corps, along with its third-party contractor, AECOM. The Corps directs AECOM’s work, and the applicant (PLP) pays for it. AECOM’S technical staff, project managers and subcontractors do much of the heavy lifting: they built a dedicated website, planned and ran scoping meetings and public hearings, reviewed Pebble’s Environmental Baseline Documents and permitting application, drafted the EIS, reviewed and categorized nearly 116,000 public and agency comments, and participated heavily in technical meetings with cooperating agencies. In fact, more than half of the participants in those meetings came from USACE, AECOM and its subcontractors. But AECOM was not included among the logos in the new PLP advertising campaign. Heatwole said that’s because their efforts were focused on listing regulatory and cooperating agencies.
Status of the Final EIS
The Corps held an additional technical meeting with cooperating agencies this week and has begun biweekly meetings to ensure ongoing conversations as it prepares the Final EIS, currently scheduled to be released in first quarter 2020. The Corps continues to reiterate that is not driven by a timeline, but by the process and the quality of the document. It is making a decision soon about whether revisions to its schedule will be necessary.
“We expect a preliminary Final EIS to come out in about a month or so,” said Moselle. “Our review of that will be looking to make sure the Corps has adequately responded to the significant comments we made.”
Read more:
Tilden and Alexie op-ed: “Don’t Be Misled: Pebble’s Permitting Process is Broken,”
The EPA, the Corps and where to go for dinner
Draft meeting notes from November technical meetings between the Corps and cooperating agencies
Federal regulations related to role of cooperating agencies: Part 1501.6, Part 1508