Agency Can Veto Projects Whenever It Finds Potential for Harm? Whatever.

I’m pretty sure I have mentioned this issue before, but one of the development companies for the Pebble Mine Project in Bristol Bay, Alaska, is in a legal fist-fight with the US EPA. On May 22, 2014, the Pebble Limited Partnership (PLP) filed a complaint in US District Court charging that the US EPA’s rule supposedly authorizing a veto of a permit application before it is even filed exceeds the scope of the Clean Water Act (CWA). In a press release last week, the company said the lawsuit is needed “…to get the Agency’s attention and bring some rational perspective back to the US permitting process…”

Alaska is such a large state that it can be hard to show a map of it with any fine detail — the map would have to be too big. Look at the inset on this map, though, to get a sense of the general area where the Pebble Deposit is located. It’s easy to spot the 500 mile long Alaska Peninsula, which tapers off into the Aleutian Island chain. At the very base of the Peninsula, you’ll find Lake Iliamna. Cook Inlet is the large body of water to the east, and if you follow it all the way inland, along the Kenai Peninsula, you’ll get to Anchorage. (Source: pebblepartnership.com)

The amusing part of all this is that some legal experts suggest that a PLP challenge will face a high bar because PLP may not have “standing” to challenge a US EPA action since PLP has not yet filed a permit application. Experts said that until PLP files an actual permit application and has the US Army Corps of Engineers deny the permit due to US EPA’s actions, PLP might not be able to block US EPA from making a legal claim.

Section 404(c) of the CWA generally grants the Agency authority to withdraw projects’ disposal specifications if the Agency finds it would cause adverse impacts to water quality, fish and shellfish beds, and other ecological resources. The Supreme Court recently let stand an appellate ruling, Mingo Logan Coal Co. v. EPA that upheld the agency’s authority to veto projects “whenever” it finds the potential for harm. Many business people fear that broad interpretation creates a poor environment for any long-term resource or infrastructure investment. Who will invest in something when the EPA can decide to terminate a permit “whenever” it wants?

Some lawyers are saying PLP can’t file a suit, because PLP has not filed a permit application, and some lawyers say EPA can reject a permit application, even though the same permit has yet to be filed. I know they aren’t the same lawyers saying both things, but you’d think in 2014 someone would weigh in on the side of common sense in terms of the word “whenever” and its actual meaning.

But this is the United States legal system and this is how it works. Whatever.

About the Author
Gerald L. Kirkpatrick, P.G. is a Principal Geoscientist and the Managing Partner of Environmental Standards, Inc. Mr. Kirkpatrick has more than 30 years of applied environmental geoscience experience in both private industry and environmental consulting. Outside of work, Gerry enjoys fishing and an occasional single malt. A very poor chess player, he remains dedicated to the game, nonetheless.