The State of Alaska and the Pebble Partnership say an Environmental Protection Agency review of the proposed project is unprecedented, and could be a harbinger for dangerous action by the federal government.
The EPA has embarked on a one-year review of whether it should take action to protect the Bristol Bay fishery from the Pebble mine. After a request from the state and the Pebble Partnership, it announced it would give them a 45-day extension to make their case against regulation in the first part of the review, under Section 404(c) of the Clean Water Act.
Even with the extension, Pebble Partnership spokesperson Mike Heatwole says it's heading into uncharted waters.
"What we've sought is more clarity from the EPA on, 'OK, what exactly do you want to see from Pebble?'" Heatwole said. "We have not filed an application yet to any agency to develop a project for Pebble. We have not released a mine plan."
The state confirms no official permit plan has been filed.
Ruth Hamilton Heese, a senior assistant to Alaska Attorney General Michael Geraghty, says without an official plan the EPA would be basing its decision off hypothetical situations.
"We don't even known what's being proposed because we don't have anything other than the EPA hypotheticals," Heese said. "It's very difficult to speak to the EPA's proposed actions."
Channel 2 asked the EPA for an interview about what it would base its review on, but the agency said no one was available. Instead, the EPA issued a written statement saying the review will incorporate any information the state or Pebble provide, as well as its own watershed assessment and Pebble's filings with the Securities and Exchange Commission.
"EPA used this information to develop realistic mining scenarios that describe the potential impacts of mining on the salmon fishery," the statement read in part.
With so little currently known about Pebble's actual shape, the state says the EPA review violates due process.
"I mean, we don't even have permit applications," Heese said. "We haven't even said we would permit the mine and I think that should alarm other states for any sort of project, whether it's public or private."
Geraghty’s office says while it hasn't made a decision on whether the mine is or is not a good idea, it agrees with Pebble that the permit process must be protected.
If the EPA does not impose any restrictions on mining in the Bristol Bay Area. Heatwole says Pebble would still need to acquire 60 permits to make the mine a reality.
In a late development Wednesday, state Superior Court Judge John Suddock ruled that the state's authority to regulate mining trumps that of local boroughs, including a 2011 Lake and Peninsula Borough initiative intended to limit large-scale Bristol Bay mining projects.