Court Vacates Trump Reversal of Bristol Bay Protections

In a succinct two-page order issued late Friday, the U.S. District Court for the District of Alaska granted EPA’s request to remand and vacate the 2019 decision by the Trump administration to withdraw proposed protections for Bristol Bay. This reinstates EPA’s 2014 Proposed Determination under Section 404(c) of the Clean Water Act that, if finalized by EPA, would stop the Pebble Mine once and for all.

It is the start—not the end—of a long administrative process to protect the national treasure that is Bristol Bay from the ill-conceived catastrophe that is Pebble Mine.

Tribal leaders and commercial fishermen in Bristol Bay celebrated (press release here).

This concludes litigation filed by Trout Unlimited, NRDC, and our Bristol Bay partners challenging the Trump administration’s 2019 illegal withdrawal of 404(c) proposed protections for Bristol Bay.

EPA has freely admitted that when the Trump administration withdrew its 404(c) Proposed Determination in 2019 it did not base its decision on technical judgments about whether the mine proposal addressed in the agency’s 2014 Proposed Determination would result in an “unacceptable adverse effect”—a standard recently articulated by the Ninth Circuit Court of Appeals in Trout Unlimited et al. v. Pirzadeh et al., No. 20-35504 (9th. Cir. June 17, 2021). 

Because EPA did not address the Ninth Circuit standard, it filed a motion to remand and vacate the 2019 withdrawal. In Friday’s order in Bristol Bay Economic Dev. Corp. v. Pirzadeh, et al., Judge Gleason vacated the 2019 withdrawal of the Proposed Determination and remanded the matter to EPA for further agency proceedings.

Not only does this reverse the political withdrawal of the Trump administration, but it also reinstates the Obama-Biden administration’s 2014 Proposed Determination that restricts the scope of proposed mining in Bristol Bay.

EPA can now resume the 404(c) process that was started in 2014.

In announcing the agency’s intent to reinitiate the 404(c) process, EPA Administrator Michael S. Regan noted the importance of Bristol Bay, its people, and its salmon:

The Bristol Bay Watershed is an Alaskan treasure that underscores the critical value of clean water in America…What’s at stake is preventing pollution that would disproportionately impact Alaska Natives, and protecting a sustainable future for the most productive salmon fishery in North America.

The Bristol Bay wild salmon fishery is an extraordinary resource that generates $2.2 billion annually, supports 15,000 jobs, provides 57 percent of the world’s sockeye salmon, and sustains indigenous communities.

Radhika Fox, head of EPA’s Office of Water, also stressed the importance of Bristol Bay: “It is essential to the livelihood and the community well-being of many Alaskan tribes. And it is also one of the most productive salmon fisheries in North America.”

Yet the Pebble Mine—a gigantic gold and copper mine proposed at the headwaters of Bristol Bay—would risk it all.

While the U.S. Army Corps of Engineers denied the Clean Water Act permit for the Pebble Mine in November 2020, it is critical for EPA to act now to ensure long-term protection of Bristol Bay. Proponents of the Pebble Mine are currently appealing the Corps’ denial and could always reapply for new permits at any time. Indeed, recent press releases confirm their strong commitment to developing the Pebble Mine.

Pebble Mine remains a threat to Bristol Bay, and Bristol Bay needs permanent protection.

If finalized, EPA’s 404(c) determination could provide lasting protections for Bristol Bay—and prevent the Pebble Mine from ever being developed. It would also fulfill President Biden’s pledge to protect Bristol Bay.

The tribal and business leaders of Bristol Bay—as well as commercial fishermen, environmental groups, investment firms, businesses, and even Congress—have been urging EPA to permanently protect Bristol Bay from the ongoing threat of the Pebble Mine for decades.

We stand with the tribes and people of Bristol Bay urging EPA to finalize the 404(c) determination before the 2022 fishing season.