Last week, two Alaska Native village corporations urged a federal judge to strike down a sweeping Environmental Protection Agency veto that they say has blocked the development of the long-stalled Pebble Mine project in Bristol Bay, while undermining economic opportunities for more than 1,000 Alaska Native shareholders in southwest Alaska.
Arguing their case in the U.S. District Court for the District of Alaska, Iliamna Natives Limited and the Alaska Peninsula Corporation emphasized that the Clean Water Act unconstitutionally gives the EPA an ungoverned federal authority to stop projects without required policy direction from Congress.
“The Constitution requires Congress – not unelected agencies – to make the fundamental policy decisions that govern Americans’ lives and livelihoods,” said Pacific Legal Foundation (PLF) Senior Attorney Luke Wake. “Section 404(c) gives the EPA extraordinary power without any objective policy direction, allowing the agency to override the default permitting process whenever EPA wants – or to take no action at all for any given project. This case gives the courts an important opportunity to reinforce the Constitution’s separation of powers.”
Pebble is a proposed copper, gold, and molybdenum mine, which is financially backed by Canadian firm Northern Dynasty Minerals, the State of Alaska and the two Alaska Native village Corporations – Iliamna Natives Limited and Alaska Peninsula Corporation.
The opposing intervenors, including Bristol Bay Native Corporation and conservation groups, have defended the EPA, while warning of potential damage to salmon habitats that are foundational for both subsistence food and the multi-billion-dollar Bristol Bay fishing industry.
Following the oral arguments, Judge Sharon L. Gleason said she would issue her decision soon.
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The June 25 hearing was the latest development in a dispute that traces back more than two decades when Iliamna Natives Limited and Alaska Peninsula Corporation partnered with the Pebble Limited Partnership to prepare for development of the Pebble mineral deposit.
Since that time, shareholders have built businesses, provided environmental, logistical, medical, and camp services, and secured contracts that promised long-term jobs and revenue for rural Alaska Native communities.
EPA’s 2023 veto eliminated those opportunities before the U.S. Army Corps of Engineers completed the permitting process.
The lawsuit is consolidated with challenges brought by the State of Alaska and the Pebble Limited Partnership. While those cases mostly focus on statutory and administrative issues, PLF is asking the court to resolve a broader constitutional question: whether Congress may give the EPA unfettered discretion to displace the Clean Water Act’s default permitting regime with an ironclad prohibition on pursuing any permit.
