EPA accused of collaboration with anti-mining activists, violating advisory committees law

By John O'Brien | Oct 14, 2014

ANCHORAGE, Alaska (Legal Newsline) – The Environmental Protection Agency secretly collaborated with environmental activists to prevent a mining project in Alaska, a recently filed lawsuit against the EPA alleges.

The Pebble Limited Partnership filed a lawsuit on Sept. 3 in Alaska federal court that claims the EPA violated the Federal Advisory Committee Act by utilizing anti-mining groups to develop a plan that would allow the EPA to use the Clean Water Act to veto any mining permit issued in the Pebble Deposit, which is located in the Bristol Bay watershed.

The lawsuit is the result of years of battling between the EPA and Pebble Partnership, as well as information provided by six Freedom of Information Act requests submitted by Pebble Partnership.

Many of the 138 pages of the complaint chronicle the contact between the EPA and anti-mine activists that form the basis of the FACA allegations.

“I think they’re wrong on the law, and I think that some folks in the EPA determined back as early as 2008, or even maybe 2006, that they wanted to kill this project, and they have manipulated the process to do it,” said Tom Collier, CEO of Pebble Limited Partnership.

There are an estimated 80 billion pounds of copper in the Pebble Deposit, according to Pebble Partnership’s website. However, the EPA effectively turned the mining project down in July by issuing a proposal that would limit mining activity.

Collier said in July that he feels EPA does not have the authority to impose conditions on development anywhere in the United States prior to the submission of a detailed development plan.

In an interview with Legal Newsline, he said he feels the EPA is attempting to exercise jurisdiction on more watersheds with the goal of zoning those watersheds and taking power away from the U.S. Army Corps of Engineers, which approves mining permits.

“What this (preemptive) veto does is change the gameplan in how you’d go about getting a permit,” Collier said.

The EPA’s gameplan, Collier said, was to collaborate with anti-mining groups to assure the Pebble project would never happen.

Environmentalists and Alaska Native Tribal representatives made up what the complaint calls the “Anti-Mine Coalition,” which PLP said was used as an “auxiliary EPA.”

“The Anti-Mine Coalition secretly advised EPA on how the agency should develop its strategy under (the Clean Water Act), including making critical recommendations on who EPA officials should recruit, how the agency could best leverage the Alaska Native Tribes, and how to formulate EPA’s messaging in a way that would minimize anti-federal government backlash among Alaskans,” the complaint said.

“EPA reciprocated by connecting the members of the Anti-Mine Coalition with the key points of contact on Pebble Mine issues within the agency… Further, the Anti-Mine Coalition secretly provided advice and recommendations on the substance, timing, and implementation of EPA’s (Clean Water Act) scheme with regard to Pebble Mine.

“Coalition members counseled EPA on the purported advantages of preemptive action and coordinated resources on the ground in Alaska and in Washington, D.C., to provide EPA with the support needed to accelerate the (Clean Water Act) process in a way meant to restrict public involvement to the greatest degree possible.”

The coalition drafted white papers, memos and presentations for the EPA to assist it in building a case for the preemptive veto, PLP says, while also providing ties to anti-mining scientists who would provide the science to support the preemptive veto.

“The critical role that the Anti-Mine Coalition played in providing advice, recommendations in formulating and supporting EPA’s (Clean Water Act) strategy, while shielded from public scrutiny, is precisely the kind of back-room influence peddling that FACA was enacted more than 40 years ago to prevent,” the complaint says.

The complaint also chronicles communication with anti-mining scientists and an “anti-mine assessment team.” These allegations are detailed further in the complaint.

Included within the complaint is the story of Phil North, an ecologist in the Aquatic Resources Unit of EPA’s Region 10. The complaint calls him a central figure in collaboration.

Responses to FOIA requests stated that multiple years’ worth of North’s emails were lost when his hard drive crashed.

“Further information about North’s surreptitious activities in meeting with and coordinating the (Clean Water Act) advocates is also unavailable because North has left the country,” the complaint says.

“On information and belief, the House Oversight Committee several times requested that North appear voluntarily to testify regarding the ‘loss’ of his emails.

“On information and belief, each time North agreed to appear then later backed out through counsel. North later left the country. His whereabouts are presently unknown, although public records note that he might be in New Zealand.

Alaska Attorney General Michael C. Geraghty intervened in an earlier PLP lawsuit that asked for an injunction against the preemptive veto. It was recently dismissed on procedural grounds, but Collier said an appeal of that decision is coming.

Geraghty’s motion to intervene in that lawsuit sought to enforce Alaska’s right to regulate and manage its lands, it said. It also sought to protect the economic welfare of its citizens.

Alaska owns the land in which the Pebble deposit is located.

“The State receives a direct pecuniary interest from its mineral resources in the form of royalties, mining taxes and other economic benefits, and as such, any interference with the lawful and predictable permitting review of such development of those resources causes a direct impact on Alaska’s economic interests,” Alaska’s motion states.

Collier said the project would help develop the remote area. Those who live there use generators for power because no electric grid exists, he says.

He added that the project would provide about 30,000 jobs nationwide. Beyond jobs at the mine, workers would be hired to build trucks in Illinois.

Alaska’s motion also accuses the EPA of a power-grab.

“After commencing its watershed assessment process, EPA narrowed its focus to consideration of hypothetical large-scale mine scenarios at the Pebble deposit,” it said.

“In addition to the narrowed focus on large mine hypotheticals, the process EPA used in preparing its Bristol Bay watershed assessment evolved over the course of the assessment’s development. That process is not codified in EPA regulations.

“The EPA variably cited Section 104 and Section 404 of the CWA for its authority to conduct the watershed assessment. Nothing in these provisions authorized the assessment.”

The case is similar to that of the proposed Spruce No. 1 Mine in West Virginia. The Army Corps of Engineers had granted a permit to Arch Coal and Mingo Logan Coal, but the EPA issued a retroactive veto of the permit.

Despite a district judge ruling for the coal companies, a federal appeals court has ruled the EPA had the authority to do so under the Clean Water Act.

PLP’s FACA case doesn’t ask the court to make a judgment on the preemptive veto. It seeks an injunction that would prevent the EPA from issuing Clean Water Act restrictions until it stops using science and information gathered by what it said was the collaboration between the EPA and anti-mining groups.

“Our FACA case doesn’t require that we show the agency was biased or the veto was predetermined or prejudiced science was used,” Collier said.

“Our FACA case only has to show that the EPA sought advice from these groups repeatedly without following the requirements of FACA.

“The way they violated FACA clearly demonstrates a bias on their part.”

From Legal Newsline: Reach editor John O’Brien at jobrienwv@gmail.com.

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