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Why EPA Needs to Block Alaska's Pebble Mine

Why EPA Needs to Block Alaska's Pebble Mine

By Joel Reynolds - August 10, 2013

It's no mystery why more than 80 percent of the people who live in the Bristol Bay region of Alaska oppose the Pebble Mine.

A consortium of foreign mining companies wants to build the largest open pit mine in North America, in the heart of one of the most pristine and ecologically diverse places our country has left. According to a comprehensive scientific assessment nearing completion by the Environmental Protection Agency, the project -- which would extract copper and gold -- could have “catastrophic” consequences for the world’s most productive wild salmon fishery, putting at risk tens of thousands of jobs and $1.5 billion in economic benefits each year.

Yet last week in Washington, D.C., in testimony before a House subcommittee, a stacked deck of mining industry lobbyists and consultants attacked the EPA study as “an alarmist portrait of a hypothetical mining project” and argued that the project is entitled to full review under the National Environmental Policy Act (NEPA). Later, John Shively, the CEO of the Pebble Mine consortium, went further, taking to Fox News and elsewhere to charge that public efforts in support of EPA’s review of the mine is “the greatest threat NEPA has faced since it became law.”

With friends like John Shively, NEPA doesn’t need enemies. In fact, by arguing that he has a right to NEPA review before his project can be rejected, he turns NEPA on its head.

First, the law has been, and it remains, a critically important environmental statute -- a federal commitment to environmental quality that, according to President Obama, is the “cornerstone of our nation’s modern environmental protections.” It was enacted in 1969 precisely to ensure that projects like the one pursued by Shively cannot be approved without environmental review. NEPA provides no support for his claim of entitlement to NEPA review before his massive mining project can be rejected by EPA.

NEPA was never intended to burden EPA actions necessary to prevent large-scale mining from contaminating a resource like the incomparable Bristol Bay wild salmon fishery. NEPA was never intended to burden federal action to protect our natural resources from degradation and destruction.

Second, NEPA is not our only environmental statute, and EPA unquestionably has jurisdiction to act under a wide range of others, including the federal Clean Water Act. Of particular concern to Shively and his Pebble Mine project, section 404(c) of the Clean Water Act explicitly authorizes EPA to prohibit or restrict a proposed activity where it is likely to cause “unacceptable adverse effects” on local fisheries, waters, wildlife, and recreational resources. Here, EPA has documented those adverse effects, and there is nothing in NEPA even arguably inconsistent with this Clean Water Act authority.

To be sure, EPA has rarely used section 404(c). Indeed, in the 40-year history of the Clean Water Act, the agency has taken action based on it only a dozen times. EPA has viewed it as extraordinary -- applicable only in the most compelling circumstances, where the risk of harm is significant and beyond reasonable doubt. And there is every reason to expect the agency to apply a similarly strict standard today. The histrionic claims by Shively and some members of the House subcommittee that “tens of thousands of other projects” will be put at risk by EPA action on Pebble Mine is self-serving fiction.

If there is a clearer case than this one for use of the agency’s authority to protect the resources enumerated by Congress -- including, most particularly, local fisheries -- it has never been presented.

The sheer size of the proposed mine, and the undeniable importance of the resources at risk if mining is allowed, put this request in a class by itself. The interests of no one -- not even the mining companies’ economic interest in regulatory certainty -- will be served by allowing this threat to hang over the region and its people for decades.

EPA action to protect Bristol Bay and all of the communities that depend on it is not just warranted but desperately needed -- now. 

Joel Reynolds

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