Federal judge hears arguments on lawsuit against EPA over withdrawn protections for Pebble deposit area

Five groups are announcing a lawsuit against the EPA on Oct. 8, 2019. (Photo from Grant Robinson/KTUU)

ANCHORAGE, Alaska (KTUU) - Monday U.S. District Judge Sharon Gleason heard arguments on whether or not to dismiss a lawsuit against the Environmental Protection Agency over its decision to withdraw a proposed determination which had effectively blocked developing the Pebble Mine.

Last October, the Bristol Bay Defense Alliance, a coalition of groups representing native tribes in Bristol Bay, commercial fishermen and the seafood industry filed suit against the EPA. Environmental groups then filed two additional lawsuits. The three lawsuits have since been consolidated.

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The groups suing the federal government allege that the EPA violated the Clean Water Act and the Administrative Procedures Act when it overturned its 2014 proposed determination, which had preemptively vetoed a permit that would be needed from the U.S. Army Corps of Engineers for large scale mining in the area of Southwest Alaska where the Pebble Partnership wants to build a mine.

Monday’s hearing was on the defense’s motion to dismiss the case.

The EPA argued four reasons that the case should be dismissed: The Court doesn’t have jurisdiction, the EPA’s decision is presumptively unreviewable, there is no ‘law to apply’ in reviewing the decision to withdraw the proposed determination, and that the withdrawal decision required a "complicated balancing of factors peculiarly within EPA’s expertise.”

Mark Nitczynski, an attorney with the Department of Justice representing the EPA, argued that the EPA’s decision to withdraw the proposed determination is a decision “not to enforce,” which is presumptively unreviewable. Nitczynski argued that if the case is not dismissed, Judge Gleason’s decision would subject every EPA decision not to use its veto authority on any U.S. Army Corps of Engineers permit to a review.

The plantiffs argument opposing the motion to dismiss is that the EPA’s decision is reviewable, that the withdrawal decision is not an administrative decision traditionally committed to agency discretion, and that the Clean Water Act and the EPA’s regulations provide law to apply.

Jeff Feldman, an attorney representing the Bristol Bay Economic Development Corporation, Bristol Bay Native Association, Inc. and Bristol Bay Reserve Association said the error in the EPA’s argument is that it “wants to look at one section of regulation, but doesn’t look at the rest of the statute.”

The motion to dismiss is now under advisement. Judge Gleason said she hopes to have a decision by the end of the month.

The Pebble Limited Partnership is not a party in the case. The lawsuit does not prevent the U.S. Army Corps of Engineers from continuing to review the company’s application for a Clean Water Act permit needed to build a mine at the Pebble deposit.

The plaintiffs in the lawsuit are Bristol Bay Economic Development Corporation, United Tribes of Bristol Bay, Bristol Bay Native Association, Inc., Bristol Bay Reserve Association, Bristol Bay Regional Seafood Development Association, Trout Unlimited, Natural Resources Defense Council, Alaska Center, Alaska Community Action on Toxins, Alaska Wilderness League, Cook Inletkeeper, Defenders of Wildlife, Friends of McNeil River, National Parks Conservation Association, National Wildlife Federation, SalmonState, Sierra Club, Wild Salmon Center, McNeil River Alliance and Earthworks.

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