Emails show EPA officials discussed killing Alaska mine plan long ago

By M.D. Kittle | Watchdog.org

Critics of the Environmental Protection Agency long have been, well, critical of the EPA’s public position on Alaska’s Pebble Mine project.

The federal agency has claimed for years that native Alaskan tribes have led the campaign for EPA action, including invoking a provision that would pre-emptively kill the proposed multibillion dollar copper in gold mine in southwest Alaska’s bush country.

New emails obtained by the Washington Times seem to shoot holes in the public assertions of the doth-protest-too-much agency.

“Charged with being neutral arbiters, EPA officials instead began advocating for a (pre-emptive) 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,” Times investigative report Phillip Swarts writes in the exclusive piece published on Wednesday.

In August, Watchdog.org reported that Phil North, who served as an ecologist with the EPA in Anchorage, Alaska, and Kenai, Alaska, told the Redoubt Reporter that he “advocated for a comprehensive approach to protection of the area, rather than mine by mine.”

“The more he studied the area, the more he thought EPA should utilize its authority under section 404(c) of the Clean Water Act to limit or prevent mining activities in the Bristol Bay area,” states the story in the community newspaper serving Alaska’s Central Kenai Peninsula.

“It really takes an exceptional situation for it to be used. But when I started talking about it with people, almost everybody said, ‘If there’s any place this should be done, it’s Bristol Bay,’ North told the newspaper.

The Washington Times obtained emails from North and other EPA officials showing they had been talking about dropping the Clean Water Act Section 404 (c), the so-called pre-emptive veto of a project, for some time — long before the agency conducted an assessment that some peer reviewers claimed was based on junk science.

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

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

“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,” according to the Times story.

“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.”

In February, EPA administrator Gina McCarthy finally lowered the boom, announcing the agency would initiate Section 404(c), which the EPA would use to block or greatly restrict the Pebble Mine in Alaska’s Bristol Bay region, before the company proposing the mine, Pebble Limited Partnership, has submitted a plan to the U.S. Army Corps of Engineers. EPA says it is now gathering information.

McCarthy at the time said the decision came down to protecting local resources.

“Extensive scientific study has given us ample reason to believe that the Pebble Mine would likely have significant and irreversible negative impacts on the Bristol Bay watershed and its abundant salmon fisheries,” McCarthy said.

Bristol Bay is home to half of the world’s sockeye salmon population, and the fishing industry in Alaska and beyond has pumped in a lot of money fighting the mine and pushing EPA to kill it through the Clean Water Act.

But that “extensive scientific study” has come under scorching criticism by peer reviewers.

Michael Kavanaugh, a member of the National Academy of Engineering, has said the peer review on the EPA’s updated assessment draft, released in April 2013, “fails to meet” the EPA’s own criteria.

“The lack of an open and transparent external peer review process for review of the 2013 Assessment seriously erodes the credibility of the document, and the validity of basing any future management decisions on mining in the Bristol Bay watershed on findings” of the assessment, Kavanaugh, senior principal of Geosyntec Consultants, wrote in testimony.

The Times reports that the pre-emptive veto initiative reached all the way to top officials in Washington, D.C.

“A presentation prepared in 2010 for then-EPA Administrator Lisa P. Jackson made clear that a (pre-emptive) veto ‘had never been done before in the history’ of the Clean Water Act and could risk litigation,” the story states.

Pebble Limited Partnership last week sent the EPA a sternly worded letter rebuking the agency for what it sees as a secret plot to kill the mine project before the company had a chance to present its plan.

“Rather than allowing the filing of a mining permit application, EPA employees secretly plotted with environmental activists to undermine the ability of land owners to objectively evaluate and develop the proposed mining of the Pebble deposit …, and thereby establishing a precedent that will have long-term harmful impacts on investment and job creation in the United States,” PLP asserts in the letter.

PLP spokesman Mike Heatwole told Watchdog that the company is pleased these “very serious issues are getting attention.”

“It’s long been our view that the EPA process was rushed and biased against the project,” he said in an email. “The more we learn the more concern we have about a fair and objective process to review our project and we certainly hope the EPA’s Inspector General will look into this matter.”

The state of Alaska has raised concerns about the EPA’s unprecedented power grab. In February, Alaska Attorney General Michael C. Geraghty wrote EPA Inspector General Arthur Elkins that 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 bias.”

Republicans on the House Oversight and Government Reform Committee have voiced similar concerns. Neither congressional leaders nor the press officer for the committee returned Watchdog’s request from comment.

Robert Dillon, Republican spokesman for the Senate Energy and Natural Resources Committee, told Watchdog.org the EPA’s action is bigger than one big mine project.

“This is beyond Pebble,” he said.

U.S. Sen. Lisa Murkowski, R-Alaska, is the ranking Republican on the committee. She has opposed any effort by the EPA to pre-emptively veto the mine, although she has not taken a position on the mine.

“Sen. Murkowski’s biggest concern is the fact that the EPA headquarters would use this as an opportunity to try to expand its authority under the 404 veto, which is way beyond what Congress ever intended,” he said.

In doing so, Dillon said EPA could cripple investment and development in projects nationwide.

“No investor will put money into a project in America if they have no certainty in the predictability of the permitting process.”

EPA officials defended the process to the Times, asserting the emails reflect internal deliberations and are 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.”

But Pebble Partnership CEO Tom Collier warned the actions that the EPA is contemplating could have deleterious consequences.

“It is a precedent that will be leveraged by environmental activist groups and will have a chilling effect on future investment and job creation throughout the country,” Collier said. “Congress never intended to grant EPA the authority to undertake proactive watershed zoning over broad areas of state and private lands when it passed the Clean Water Act, yet that is exactly what is happening here.”

Contact M.D. Kittle at mkittle @watchdog.org