Public comment deadline looms; Pebble opponents vow to fight illegal permit application

Yup’ik Elder and longterm opponent of the proposed Pebble Mine Bobby Andrew (1943-2015). Photo credit: Giovanna Marcantonio

As people prepare to submit their public comments on the U.S. Army Corps of Engineers Draft Environmental Impact Statement on the proposed Pebble Mine, before the final deadline this Monday, July first, Bristol Bay defenders are dissecting permitting documents and past statements in search of legal grounds and legislative options to derail the Trump administration’s rush to ram through permits for the proposed mine.

Describing the Pebble Partnership’s current application for federal permits, Joel Reynolds said, “To avoid public focus on the scale of the harm that they are going to cause to the world’s greatest wild salmon ecosystem, they decided that they’re going to come in with a mine plan to develop only eight percent of the overall deposit. But, they won’t say one way or the other if they have any interest in the rest of it. That is so ridiculous. But, That is exactly what’t they’re up to.”

Reynolds is a senior attorney for the Natural Resources Defense council, who has worked for over a decade to facilitate Alaska Native resistance to the proposed Pebble Mine.

The Pebble Partnership’s current permit application proposes a 20-year mine plan that is significantly smaller than the plans for a generational mine that they continue to pitch to potential investors.

A financial feasibility study (PDF) by a career Rio Tinto permitting expert, commissioned by the Natural Resources Defense Council, argues that this plan is not profitable, given the associated infrastructure costs..

The Pebble Partnership has not published a financial feasibility study of the mine plan that they have taken into permitting, despite repeated calls to do so. Typically such a plan is required as part of the permitting process.

The Pebble Partnership CEO Tom Collier said during an April, 2019,breakfast for the proposed Mines’supporters in Anchorage, AK  https://vimeo.com/328490934?ref=tw-share”We don’t have a secret plan. We don’t have any specific plan to come back and expand this mine site. Now, I’d be the first to admit, that this only takes ten percent of the known deposit out of the ground, what we’re taking into permitting. Somebody is likely to come along at some point in the future and want to expand this mine site.”

Comparing Statements by Tom Collier and John Shively from [email protected] on Vimeo.

In a secretly recorded video, former Pebble Partnership CEO John Shively was captured speaking to the Northwest Fisheries Association in 2013 and saying, “we didn’t want to permit the whole mine because we didn’t think that that was responsible. We wanted to mine the first 20 years and then come back in and look at another phase.”

Permitting only the first phase of a planned development is called “segmenting.”It is illegal under U.S. federal law, according to a 1985 ruling in the 9th circuit. 

Taken in the context of Collier’s recent statements, Shively’s statement calls into question whether the Pebble Partnership’s permitting applications and Tom Collier’s statements are sincere.

“This is one of the clearest examples of illegal segmentation that I’ve ever seen, the numbers bear it out,” Reynolds said in reaction to the video.

“There is no way a mining company is going to pursue a project for eight percent of a deposit, if they are certain to lose billions of dollars in doing so. It simply doesn’t make sense,” said Reynolds. “And, the purpose of the segmentation doctrine is to make sure a project is not carved into little pieces that don’t make sense as a way to subvert a meaningful public assessment of the ultimate environmental impacts of a much larger whole, comprising all of the segments.”

“Illegal segmenting exists when an applicant proposes only one part of a larger project that the applicant can reasonably foresee pursuing,” Reynolds said. “In this case, there is no doubt in my mind that the Pebble Partnership or whatever successor company takes over the Pebble Mine can reasonably be foreseen to want to develop the whole thing.

“The reason is that the current mine plan proposed for permitting will almost certainly lose a lot of money. Because, the revenue will not meet expected capital costs for building the mine and related infrastructure in this very remote undeveloped inaccessible region of the Bristol Bay watershed,” Reynolds said.

“If they attempt to subvert the environmental review by segmenting the project,” continued Reynolds, “they can expect a federal court to find liability and enjoin the project until the legal violation is corrected, which would require a new Environmental Impact Statement or a Supplemental Environmental Impact Statement. It would stop the development of the project for whatever time is required to redo the analysis in a way that takes into account the entire project. The financial cost will be significant, because these investors will essentially have a stranded asset.”

Brian Litmans is an environmental lawyer with Trustees for Alaska who represents United Tribes of Bristol Bay, an organization that advocates for 15 Bristol Bay tribal governments that represent over 80 percent of the region’s total population.

“By only seeking a permit for the first 20 years of mining, the Pebble Limited Partnership and the U.S. Army Corps of Engineers are unlawfully segmenting the NEPA analysis,” Litmans said after seeing the video comparing Shively’s and Collier’s statements. “The EIS must consider the larger project.”

Former Alaska State Senate President Rick Halford is a long-time opponent of the proposed Pebble Mine. Speaking from Bristol Bay he said in reaction to the video, “What they’re proposing is contrary to the whole background and intent of the EIS and that’s obvious by their actions. They’re still not following the process they should be following. It’s not an evaluation of their whole project, and it is segmentation.”

Executive Director of United Tribes of Bristol Bay Alannah Hurley said in a statement reacting to the video, “The Pebble Limited Partnership has been telling investors for years that the small plan is just the first step in building a ‘generational mine’ that extracts all available resources at the Pebble deposit.”

“It’s no surprise that they’re lying to Alaskans and federal regulators about a smaller mine plan,” Hurley said. “Pebble has lied to the people of Bristol Bay time and again and will lie to whoever it takes to push this mine despite widespread local opposition. Don’t be fooled by their re-branding propaganda, without a shadow of a doubt Pebble is preparing to get their foot in the door to lay the foundation to transform Bristol Bay from salmon country into a toxic mining district, which is why we must demand our leadership stop this toxic project from moving forward.”

Calling for a halt to the permitting process, Nelli Williams Alaska Director for Trout Unlimited said in a statement reacting to the video, ”The current review process falls well short of very basic standards. Pebble is asking Alaskans to review a “mine of convenience,” while promising investors a mine that is completely different.“

“By proceeding with the permit review process and ignoring the immense risks of future explanation, government regulators are complicit in the Pebble Partnership’s deception of the public. For a region as unique as Bristol Bay, both the Army Corps of Engineers and Pebble must be held accountable and meet a high bar. Since they are not meeting this bar, the process should be stopped,” Williams said.

Pebble Stock Jumps as EPA Moves Toward Clearing Path For Permits.

Wednesday, the EPA General Council Matthew Leopold issued a memo (PDF) ordering the EPA’s region 10 office to resume consideration of whether to withdraw the Obama era EPA’s proposed determination blocking the proposed Pebble Mine.

That proposed determination was reached based on years of peer reviewed scientific studies, summarized in the Bristol Bay Watershed Assessment.

“If it’s their intention to replace the very well done and complete Bristol Bay Watershed Assessment with something rushed through by a contractor or the U.S. Army Corps of Engineers, then I would be very disappointed in that,”Halford said.

Stock prices for the Pebble Limited Partnership’s Canadian parent company, Northern Dynasty Minerals, jumped 28% following news of the EPA’s move.

“Today’s announcement is the product of the millions of dollars Pebble has spent to buy support in the Trump Administration. It is a purely political decision designed for a sole purpose: to clear the path for foreign mining interests to plow through a toxic project that no one wants.” Hurley said Wednesday.

“We need science, reason and a robust public process,” said Williams,“ not political favors that hurt Alaskans.”

Leopold ordered the EPA region 10 office not to hold a planned public comment period on whether to withdraw the proposed determination. A move that Hurley said “flies in the face of the federal government’s trust responsibility to consult with Tribes on matters affecting their way of life.”

House votes to defund Pebble Mine permit process for 2020

On June 19, 2019. Verner Wilson III, a member of the Curyung Tribe who now works for Friends of the Earth, was in Washington D.C. lobbying members of the U.S. House of Representatives to support Amendment 90 to the omnibus spending package H.R. 2740 offered by Congressperson Jared Huffman (D – CA).

If signed into law, that amendment would block the U.S. Army Corps of Engineers from using any of its 2020 budget to continue the Draft Environmental Impact Statement for the proposed Pebble Mine. Huffman worked for the Natural Resources Defense Council, an environmental law firm spearheading opposition to the proposed Pebble Mine, before running for office.

The amendment was approved 233-201. The House then passed the bill with Amendment 90 attached, though the senate is advancing its own version of the spending bill without the amendment. A conference committee is expected to reconcile the two bills in September.

“The entire US House of Representatives has spoken on Pebble Mine for the first time ever and the people of Bristol Bay and Alaska prevailed in a showing of support for our fisheries, wildlife and culture,” Wilson said. “We have an uphill battle in the Senate but we’ve all got to keep trying until our national treasure Bristol Bay is protected!”

“Our coalition has called on international organizations to take action on the last great wild salmon fishery left on the planet,” Wilson said, describing the Save Bristol Bay coalition’s ongoing work to reach potential allies.

This Monday, July 1st, is the final deadline to submit public comments https://pebbleprojecteis.com/publiccomments/neweiscomment  on the U.S. Army Corps of Engineers Draft Environmental Impact Statement on the proposed Pebble Mine.

The U.S. Army Corps of Engineers has announced plans to reach a permitting decision in mid-2020. “There’s no question that if a permit is issued it’s going to be litigated,” Reynolds said.

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