State asks U.S. Supreme Court to review the U.S. Environmental Protection Agency’s action against proposed Pebble project

The state of Alaska has asked the U.S. Supreme Court to review the U.S. Environmental Protection Agency’s unusual action last January to prohibit large mines in a 309-square-mile area of southwest Alaska.

The EPA’s action was aimed at the proposed Pebble project, which would develop a large copper, gold and molybdenum deposit. The mine developer is Pebble Partnership Ltd., a subsidiary of Northern Dynasty Minerals, a Vancouver,B.C.-based minerals exploration company.

Alaska Attorney General Treg Taylor acknowledged that the direct appeal to the high court, bypassing lower courts, “is an extraordinary ask, but it’s appropriate given the extraordinary decision being challenged.”

The EPA used its federal Clean Water Act authority under Section 404c in its decision, which was unusual in being applied to such a large area and before the mine itself had been approved.

Pebble has been a focus of sharp controversy in Alaska with stuff opposition from commercial fisheries and tribal groups in the Bristol By region, who fear a large accidental discharge at the mine would contaminate streams that support large salmon fisheries.

Lands in the area are owned by the state and the EPA Section 404c decision effectively condemns the land, creating a de facto park, Taylor said. The Pebble region has long been classified for mineral development in state land plans.

Alaska Department of Law spokesperson Patty Sullivan said the U.S. Constitution gives the supreme court authority to hear cases involving disputes between a state and the federal government, although only a few of these are requested each year and the court typically agrees to hear just a small number.

Procedurally, the state has asked the court to hear the case as a first step, she said.

In a related development the Alaska division of the U.S. Army Corps of Engineers is still reviewing a remand of its decision to reject an application for a federal Section 404 wetlands permit from Pebble Partnership.

The decision was sent back to the Alaska division in April by the Corps’ Pacific region headquarters based on what was said to be inadequate review of the company’s proposed wetlands protection and impact mitigation plan and lack of consideration for socio-economic benefits in one of the most economically distressed regions of Alaska.

If it were developed Pebble would be one of the world’s largest copper and gold mines. The company would ship ore concentrates from a port that would be developed on Lower Cook Inlet.