Pebble mine developer sues EPA over Alaska mine veto

Northern Dynasty Minerals

18/03/2024 21:24

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      Developer says EPA veto was arbitrary and capricious
    

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      Veto failed to consider economic impacts, lawsuit said
    

  
    By Clark Mindock
       March 18 (Reuters) - Northern Dynasty Minerals  NDM.TO ,
the developer of the proposed Pebble copper and gold mine in
southwest Alaska, has sued the U.S. Environmental Protection
Agency seeking to overturn the agency’s veto of the project. 
    The developer on Friday filed a lawsuit in federal court in
Anchorage challenging the EPA’s 2023 final determination
prohibiting the discharge of mining waste in the state's Bristol
Bay over concerns the materials would degrade the watershed and
harm important fishing ecosystems.
    Northern Dynasty said the determination made under the Clean
Water Act was arbitrary and capricious in violation of federal
administrative law, because it failed to adequately consider the
economic impact of the decision and used a “wild overestimate”
of what protected waterways would be impacted by mining
activity. 
    Northern Dynasty claims it has spent at least $1 billion
over two decades in its efforts to develop the project, which
was effectively killed by the decision, including $200 million
on environmental studies.
    “This is just another example of gross EPA overreach of the
powers granted to it by Congress,” said Ron Thiessen, Northern
Dynasty’s president and CEO, in a statement.
    The EPA didn’t immediately respond to a request for comment
on Monday.
    The Bristol Bay watershed in southwestern Alaska supports
the world’s largest sockeye salmon fishery and is known for its
large mineral resources. The watershed also provides habitats
for 29 species of fish, more than 190 birds and dozens of
mammals, according to the EPA.
    The proposed mine, which has languished in a lengthy
approval and permitting process for decades but has not started
construction, would tap one of the world’s largest copper and
gold deposits.
    The EPA claims it would permanently destroy over 2,000 acres
of wetlands protected by the Clean Water Act.
    The developer also filed a lawsuit against the U.S.
government on Thursday alleging the veto amounted to an
unconstitutional taking of its property in violation of the U.S.
Constitution's 5th Amendment, which says that private property
can't be taken for public use without compensation, in the U.S.
Court of Federal Claims in Washington, D.C.
    The state of Alaska also sued the U.S. government in that
court last week seeking $700 billion over the decision, arguing
the EPA's veto infringed on the state's sovereignty and would
deprive it of funds from taxes, licensing fees and royalties it
would have received from the mine. 
    The state had already challenged the EPA’s decision last
year directly with the Supreme Court, arguing it violated the
state’s sovereign right to regulate its land and waters, as well
as a 1976 land swap with the U.S. government that gave the state
ownership over the area in question.
    The Supreme Court declined to take that case in January, but
did not say why.
    The developer’s new lawsuit in Alaska makes similar claims,
arguing the Clean Water Act does not give the EPA authority to
override the state’s preferences for using the lands for
extracting valuable minerals.
    The EPA had previously argued in a brief submitted to the
Supreme Court that Alaska’s statehood and the land swap do not
preclude the agency from evaluating projects to ensure they
comply with environmental law.
    The case is Northern Dynasty Minerals Ltd v.  U.S.
Environmental Protection Agency, U.S. District Court for the
District of Alaska, No. 3:24-cv-00059.
    For Northern Dynasty Minerals: Keith Bradley and Jeffrey
Walker of Squire Patton Boggs
    For the EPA: Not yet available

 (Reporting by Clark Mindock)