EPA may have tried to pre­empt Alaskan mine plan

The Washington Times Weekly - - National - BY PHILLIP SWARTS

Though Pres­i­dent Obama has re­peat­edly urged that sci­ence guide en­vi­ron­men­tal de­ci­sions, reg­u­la­tors in­side the En­vi­ron­men­tal Pro­tec­tion Agency se­cretly worked with tribal and en­vi­ron­men­tal ac­tivists to pre­empt a full re­view of an Alaskan mine and veto the project be­fore the own­ers’ per­mits could be con­sid­ered, in­ter­nal memos show.

Charged with be­ing neu­tral ar­biters, EPA of­fi­cials in­stead be­gan ad­vo­cat­ing for a pre­emp­tive veto of the Peb­ble Mine project in western Alaska as early as 2008, long be­fore any sci­en­tific stud­ies were con­ducted or the per­mit ap­pli­ca­tions for the project were even filed, the emails ob­tained by The Wash­ing­ton Times show.

“As you know I feel that both of these projects (Chuitna and Peb­ble) merit con­sid­er­a­tion of a 404C veto,” EPA of­fi­cial Phillip North wrote in an email sug­gest­ing that the min­ing project’s re­jec­tion be added to the agenda of an agency re­treat in sum­mer 2009.

EPA wouldn’t even an­nounce the be­gin­ning of a sci­en­tific re­view of Peb­ble Mine un­til 2011, two years af­ter Mr. North’s email, but dis­cus­sion of a pre-emp­tive veto dom­i­nated in­ter­nal dis­cus­sions in­side the agency for much of the three years be­fore­hand.

At the same time, EPA of­fi­cials had reg­u­lar con­tacts with po­ten­tial op­po­nents of the min­ing project, co­or­di­nat­ing ac­tiv­i­ties with en­vi­ron­men­tal­ists and even coach­ing lo­cal tribes on how they could strengthen their case op­pos­ing the project.

“Tribes have a very spe­cial role in Peb­ble is­sues be­cause of govern­ment-to­gov­ern­ment re­la­tions,” Mr. North wrote to an Alaskan tribal leader in June 2010. “EPA takes that very se­ri­ously. I en­cour­age you to de­velop that re­la­tion­ship as much as you can.”

The ef­forts to get EPA to veto the project be­fore the Army Corps of En­gi­neers could eval­u­ate the en­gi­neer­ing and sci­en­tific im­pacts reached all the way to top of­fi­cials in Wash­ing­ton.

A pre­sen­ta­tion pre­pared in 2010 for then-EPA Ad­min­is­tra­tor Lisa P. Jack­son made clear that a pre­emp­tive veto “had never been done be­fore in the his­tory” of the Clean Wa­ter Act and could risk lit­i­ga­tion.

EPA even­tu­ally con­ducted a nar­row sci­en­tific re­view and pre­emp­tively ve­toed the mine project this Fe­bru­ary, be­fore the Army Corps of En­gi­neers could de­cide the per­mits for the project on the sci­en­tific and tech­ni­cal mer­its.

The de­ci­sion has be­come one of the most con­tro­ver­sial in re­cent EPA his­tory, prompt­ing the own­ers of the pro­posed mine, mem­bers of Congress and the state of Alaska to re­quest a for­mal in­ves­ti­ga­tion by the EPA’s in­ter­nal watch­dog, the in­spec­tor gen­eral.

“The state is con­cerned that ac­tual bias within the agency in­duced EPA to in­voke a novel in­ter­pre­ta­tion of its statu­tory author­ity to con­duct the as­sess­ment and led to the de­vel­op­ment of an as­sess­ment that con­tains find­ings likely tainted by that bias,” Alaska At­tor­ney Gen­eral Michael C. Ger­aghty wrote In­spec­tor Gen­eral Arthur Elkins on Feb. 3.

Repub­li­cans on the House Over­sight and Govern­ment Re­form Com­mit­tee made a sim­i­lar re­quest af­ter re­view­ing some of the same documents ob­tained by The Times. “Tak­ing such un­prece­dented federal agency ac­tion with pre­de­ter­mined con­clu­sions is not sound govern­ment prac­tice and dele­git­imizes other nec­es­sary reg­u­la­tory ac­tion un­der­taken by the EPA,” the law­mak­ers ar­gued.

EPA of­fi­cials de­fend the process, say­ing the documents re­flect in­ter­nal de­lib­er­a­tions and not nec­es­sar­ily how the fi­nal de­ci­sions were made.

“There may be emails that people point to with staff in EPA, but this is a large or­ga­ni­za­tion and you should look at what the lead­er­ship of EPA has ac­tu­ally done. We haven’t made up our minds at all on how this process will ends, this is just a process,” the agency said in a state­ment given to The Times. “We be­lieve that any ac­tion taken should be based on the sci­ence.”

En­vi­ron­men­tal ac­tivists in the re­gion ac­cused Peb­ble Mine’s back­ers of rais­ing old, dis­cred­ited ar­gu­ments to push through a project that they say will dec­i­mate the lo­cal fish­ing in­dus­try and kill thou­sands of jobs.

Peb­ble Mine’s back­ers “con­tin­u­ally and de­lib­er­ately fail to men­tion that EPA’s in­volve­ment in Bris­tol Bay came at the re­quest of the people of Alaska and the fish­er­men of Bris­tol Bay …,” Kather­ine Carscallen, sus­tain­abil­ity di­rec­tor for the Bris­tol Bay Re­gional Seafood De­vel­op­ment As­so­ci­a­tion, said in a state­ment Wed­nes­day on the or­ga­ni­za­tion’s web­site. “We know enough about [Peb­ble Limited Part­ner­ship’s] plans — from its own documents — to con­clude be­yond doubt that de­vel­op­ment of a mine like Peb­ble would re­sult in un­ac­cept­able ad­verse ef­fects on the Bris­tol Bay wa­ter­shed.”


But Tom Col­lier, a Clin­ton ad­min­is­tra­tion of­fi­cial who now serves as CEO of Peb­ble Part­ner­ship that is seek­ing to build the mine, said there was no le­gal rea­son for the EPA to make its de­ci­sion be­fore the Army Corps of En­gi­neers com­pleted its sci­en­tific re­view and is­sued an en­vi­ron­men­tal im­pact re­port.

“Then EPA has ev­ery right un­der the statute to step in whether they so choose, but at least at that time they’ve got a strong record that’s been de­vel­oped out of a rig­or­ous, trans­par­ent and well-used prac­tice,” he said in an in­ter­view.

The Peb­ble Mine is the lat­est flash­point be­tween in­dus­tries ea­ger to tap Alaska’s rich bounty of min­er­als, metals and fu­els be­neath the earth and those who want to pro­tect the state’s pris­tine land­scape.

The con­tro­versy sur­rounds Bris­tol Bay in Alaska, one of the most pop­u­lar commercial fish­ing spots in the world. The EPA es­ti­mates that the area pro­duces roughly half of the world’s pop­u­la­tion of wild sock­eye sal­mon, an eco­nomic boon val­ued at $300 mil­lion in 2009 and a key part of the multi­bil­lion-dol­lar fish­ing in­dus­try. It’s de­scribed as the largest fish­ing spot in the Pa­cific Ocean.

But the bay also has an abun­dance of other valu­able com­modi­ties: gold, sil­ver and cop­per.

Un­der a com­pro­mise that helped cre­ate the Clean Wa­ter Act in 1972, the Army Corps of En­gi­neers has re­spon­si­bil­ity for con­duct­ing en­vi­ron­men­tal im­pact as­sess­ments of po­ten­tial projects — in­for­ma­tion that the EPA then uses to reach its de­ci­sions.

The EPA of­fi­cials re­view­ing Peb­ble project, how­ever, ar­gued that they should de­cide the project at the out­set and not wait for the corps.

Such an ap­proach ad­vo­cated in the in­ter­nal emails con­flicts with Mr. Obama’s of­ten-stated goal that such de­ci­sions be made on sci­en­tific mer­its alone. “Sci­ence holds the key to our sur­vival as a planet and our se­cu­rity and pros­per­ity as a na­tion. It’s time we once again put sci­ence at the top of our agenda and worked to re­store Amer­ica’s place as the world leader in sci­ence and tech­nol­ogy,” the pres­i­dent urged in one of his first ra­dio ad­dresses af­ter win­ning the 2008 elec­tion.

The 2010 pre­sen­ta­tion pre­pared for Ms. Jack­son, the pres­i­dent’s first EPA chief, laid out “op­tions to in­flu­ence the project” and pro­duce a veto be­fore the corps com­pleted its en­vi­ron­men­tal as­sess­ment.

Of­fi­cials de­bated the pros and cons if the EPA re­jected the pro­posal based a sec­tion of the Clean Wa­ter Act that “au­tho­rizes EPA to pro­hibit, re­strict or deny the dis­charge of dredged or fill ma­te­rial at de­fined sites in wa­ters of the United States.”

Tra­di­tion­ally wait­ing un­til per­mits were filed and sci­en­tific stud­ies were com­pleted would “gen­er­ate con­sid­er­able in­for­ma­tion in­form­ing the de­ci­sion,” the doc­u­ment for Ms. Jack­son stated. But of­fi­cials wor­ried that wait­ing would risk the EPA be­ing able to veto only the sin­gle mine and not pre­vent any fu­ture con­struc­tion in the re­gion.

EPA of­fi­cials also iden­ti­fied as a con the fact that pro­po­nents of the project would spend “tens of mil­lions of dol­lars” mak­ing the case for the project be­fore the agency could weigh in with its de­ci­sion.

Many of the con­cerns iden­ti­fied in the doc­u­ment dealt with pol­i­tics and process, and not the sci­ence.

Tipped off?

When EPA fi­nally an­nounced it would con­duct its own sci­en­tific as­sess­ment in 2011, it said it had done so at the re­quest of tribes. In fact, EPA of­fi­cials had long de­bated the veto be­fore that and reached out to the tribes pre­emp­tively, tip­ping them off that the EPA was con­sid­er­ing a pre­emp­tive veto.

“We have been dis­cussing 404 (c) quite a bit in­ter­nally at all lev­els of EPA,” Mr. North wrote an at­tor­ney for a tribal com­pany in Au­gust 2010. “This let­ter will cer­tainly stoke the fire.”

Like­wise, EPA of­fi­cials briefed the con­ser­va­tion group Trout Un­lim­ited, an­other mine op­po­nent, about its plans.

One of the clear­est signs that EPA had pre­de­ter­mined it would kill the project came in the form of a 2011 budget re­quest that sought money to pur­sue the 404(c) veto.

Of­fi­cials at other federal agencies with roles in the min­ing re­view process were talk­ing as early as 2010 that an EPA veto was a fait ac­com­pli.

Mr. North has briefed top EPA of­fi­cials in Wash­ing­ton and “be­lieves EPA lead­ers have de­cided to pro­ceed and they are just de­cid­ing when,” Fish and Wildlife Ser­vice bi­ol­o­gist Phil Brna wrote in an email in Septem­ber 2010.

An in­ves­ti­ga­tion of the time­line could set the stage for le­gal ac­tion by the mine pro­po­nents, who ar­gue that the EPA had no rea­son to pre-empt the nor­mal process and pre­vent a full sci­en­tific re­view.

Mr. Col­lier, the CEO of the mine com­pany and a for­mer reg­u­la­tor him­self un­der Clin­ton In­te­rior Sec­re­tary Bruce Bab­bitt, scoffs at the ra­tio­nale that the EPA has used in claim­ing it was sim­ply try­ing to pro­tect the en­vi­ron­ment and lo­cal tribes’ fish­ing liveli­hoods.

“The best way to de­ter­mine whether or not that’s the case is to do an en­vi­ron­men­tal im­pact state­ment,” he said. “If they’re con­cerned about this, why won’t they al­low the sci­ence they’re re­ly­ing on to go through that process?”


Charged with be­ing neu­tral ar­biters, EPA of­fi­cials in­stead be­gan ad­vo­cat­ing for a pre­emp­tive veto of the Peb­ble Mine project in western Alaska as early as 2008, long be­fore any sci­en­tific stud­ies were con­ducted or the per­mit ap­pli­ca­tions for the project were even filed.

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