Pebble Mine Veto: China Laughing?! It’s Pebble Weeping!

To no one’s surprise, Northern Dynasty Minerals issued an immediate attack on EPA’s December 1, 2022 Recommended Determination to veto the widely condemned Pebble Mine, the company’s sole asset.  Proposed for the headwaters of the world-renowned Bristol Bay wild salmon fishery, the Pebble project threatens the estimated $2.2 billion annual revenue, 15,000 jobs, and 50 percent of the world’s sockeye salmon, including over 78 million fish just this past summer, generated by this extraordinary fishery.

None of Northern Dynasty’s objections to EPA’s recommendation is new, all have previously been answered, and only the stage of EPA’s review process has changed.  Instead of challenging EPA’S “Proposed Determination”—see discussion here—the company now challenges EPA’S “Recommended Determination.”  More of the same objections—delivered last week in a statement by wholly-owned subsidiary Pebble Limited Partnership (“Pebble”) CEO John Shively—are likely when EPA issues a Final Determination, expected within the 60 days allowed by regulation for further agency review.

While Shively now “suspect[s] the Chinese are laughing at the US” for EPA’s recommended veto of its widely condemned project, he offers no support for this suspicion or any evidence whatsoever that China cares (or is even aware of) EPA’s review.  But Pebble’s new-found concern about Chinese market dominance is surprising.  In fact, in the now infamous “Pebble Tapes” that documented the company’s duplicity and political arrogance (and led to the immediate resignation of Pebble’s CEO), the supposed “Chinese investors” (whom Pebble was working hard to entice!) were in fact undercover investigators for the D.C.-based non-profit Environmental Investigation Agency.

If Pebble is hearing anything, it isn’t Chinese laughter but almost certainly the sound of Northern Dynasty’s own shareholders weeping—at the money so many have lost, at their unrealized expectations of a financial windfall, at the overwhelming number of Bristol Bay residents who have actively opposed the Pebble Mine for decades, without an end in sight. 

With each step EPA has taken toward the Final Determination sought since 2010 by Bristol Bay’s Tribes, Pebble has only become more strident in its invective, more intemperate in its vocabulary, and more dismissive of the scientific record developed during twelve years of federal review.   Based on that record, however, the U.S. Army Corps of Engineers denied the company’s application for a federal permit in November 2020, and today, after further agency review and another round of extensive public comment, EPA has recommended a section 404(c) veto. 

Despite the unprecedented scale and duration of these federal agency review processes, EPA’s recommended action remains, according to Pebble, a “massive regulatory overreach,” riddled with “indefensible legal and non-scientific assumptions,” and based on “wildly speculative claims about possible adverse impact,” all resulting in a “steriliz[ation of] the world’s largest undeveloped deposit of much needed copper, gold, silver, molybdenum, and rhenium. . . .” According to Pebble, even after a dozen years of review, including the Army Corps’ permit process and 2020 denial, EPA’s recommended action remains “pre-emptive,” a false “choice between mining or fishing,” an “injustice” that the company is determined to fight.

Unfortunately, as three specific examples from its recent statement make clear, Pebble has never listened either to the voices of the region’s residents or to the myriad responses repeatedly offered to their seemingly unanswerable list of myopically self-interested grievances:

First, it claims in its latest public attack on EPA’s review that the agency in 2017 (under Administrator Scott Pruitt) “was forced to settle and allow Pebble to proceed through the normal, well established permitting process in the United States.” But it seemingly fails to register with the company that the very permitting process to which it refers ended in denial of a permit for the Pebble project two years ago!  As a result, Pebble has no colorable basis on which to argue today that the exercise of EPA’s independent authority under section 404(c) is in any sense “peremptory.  And yet it does just that—again.

Second, as an obvious red herring, Pebble cites as “the most egregious part of this entire process” the EPA’s alleged “blatant dismissal of, and complete lack of consideration for, the significant economic benefits this project could have for the region and for the state . . . .”  But this claim of “egregious” error is specious, both because, as a legal matter, “economic benefit” is irrelevant to section 404(c)’s standard of “unavoidable adverse impact” and because, as a factual matter, the claim is premised on a transparently insubstantial “Economic Contribution Assessment” prepared in February 2022 for Pebble by its consultant IHS Markit.

That assessment’s deficiencies are many and obvious, including that (1) it cites repeatedly and uncritically to Northern Dynasty’s self-serving, deeply flawed 2021 Preliminary Economic Analysis; and (2) it explicitly relies on other “preliminary planning information provided by Northern Dynasty as key inputs for the models that assess the potential long-term economic contributions of the Pebble Project.” Almost no supporting information is provided for any of the wildly optimistic economic and employment benefits claimed.

But foremost among the assessment’s flaws is its remarkable failure even to mention, much less to credit and incorporate into its estimate of the mine’s economic impact, the substantial risk that this exceptionally destructive project poses to the health and integrity of the region’s existing economic engine -- the $2.2 billion a year Bristol Bay fishery. Whether Northern Dynasty directed its consultant to ignore the project’s threat to Earth’s most productive wild salmon fishery economy or the consultant simply failed to consider it important, the significant point is that IHS Markit omitted from its analysis the central issue of economic, environmental, social, and cultural concern that has motivated opposition to this project for decades in Alaska and elsewhere.

Third, after so many years of peer-reviewed scientific review and repeated layers of public comment and federal agency review—through the Pebble Mine’s abandonment by all former major mining partners and its rejection by at least three Presidential Administrations—it is obvious that there is no imaginable amount of science sufficient ever to persuade Pebble that gouging a massive open pit into the headwaters of the world’s most productive wild salmon fishery could harm the fishery. Its response to virtually all opposition has consistently been to argue that the concerns, whether expressed by affected communities or by government agencies acting pursuant to statute, are motivated not by science but by politics or bias.  And it made the same claim again in its statement last week.

The time to put the Pebble Mine to rest for good is long overdue, and nothing in Pebble’s latest attack on EPA suggests otherwise. With its Recommended Determination last week, the agency has taken its penultimate regulatory step. We urge EPA now to take the final step without delay by issuing the Final Determination under section 404(c) that the Tribes of Bristol Bay have sought for so long. The future of the region, the way of life of its people and its wildlife, and the health of the invaluable wild salmon fishery that sustains them—all of these—demand it.