Northern Dynasty files lawsuits over Pebble veto Alaska sues EPA over
Northern Dynasty Minerals Ltd., and its subsidiary Pebble Limited Partnership (“Pebble Partnership” or “PLP”) have filed two separate ac - tions in the federal courts challenging the federal government’s actions to prevent the companies from building a mine at the Pebble Project. One action, in Federal District Court in Alaska, seeks to vacate the Environ- mental Protection Agency’s (“EPA”) veto of a development at Pebble. “This is the main focus of our legal actions,” Northern Dynasty said in a press release. “We are confident that the court will vacate the EPA veto and allow permitting of the Pebble project to resume because, as we have previ- ously stated, the veto violated the law and was arbitrary and capricious.” The complaint in this action al- leges, among many other points, the veto was issued in violation of various federal statutes regarding Alaska’s statehood rights and a land exchange approved by Congress; it was based on an overly broad legal interpreta- tion of EPA’s jurisdiction which has since been over-ruled by the Supreme Court; its geographic scope exceeds that allowed by the statute; it was based on information previously de- veloped by EPA in an illegal preemp- tive veto process that was designed to reach a predetermined result; and the factual basis stated to support the veto is directly contradicted by the July 2020 Environmental Impact Statement published by the United States Army Corps of Engineers (“US- ACE”), which is an important part of the administrative record. The EPA has not demonstrated that either the development of the Pebble deposit will have unacceptable ad- verse effects under Section 404(c), or that there are any impacts to Bristol Bay fisheries that would justify the extreme measures in the final deter - mination (veto). “Whatever authority the EPA may have under section 404(c), the general provision in the Clean Water Act can- not authorize the EPA to take action to block the specific economic activity
Pebble mine prohibitions The State of Alaska has sued the U.S. Environmental Protection Agency, seeking to overturn an agency decision that it said effectively blocked development of one of the world’s largest copper and gold deposits. The complaint filed in an Anchorage federal court challenges the EPA’s 2023 final determination that prohibited the discharge of min - ing waste from the so-called Pebble deposit into the state’s Bristol Bay. The EPA in reaching its decision said it was concerned that min- ing waste would degrade the watershed and harm important fishing ecosystems. The state said the agency’s decision would deny it billions in rev- enues from taxes and royalties and called the move “a blatant affront to the sovereignty” of the state. The State says the EPA’s decision arbitrarily failed to properly con- sider the costs and benefits of its decision in violation of federal ad - ministrative law and exceeded its authority under the federal Clean Water Act. It asked the court to set aside the final determination and declare the EPA violated those laws. The case is Alaska v. U.S. Environmental Protection Agency, in the U.S. District Court for the District of Alaska, case No. 3:24-cv-00084.
that was Congress’s express purpose for granting these lands to the State of Alaska under the Cook Inlet Land Exchange,” Ron Thiessen, Northern Dynasty President and CEO, stated. “It cannot authorize the EPA to over- ride the State’s regulatory preferences for the lands, or the State’s preference to allow modest use of some streams and wetlands in the vicinity of the Deposit to facilitate the extraction of the valuable critical minerals. This is just another example of gross EPA overreach of the powers granted to it by Congress.” An action is also being filed in the United States Court of Federal Claims in Washington, DC, claiming that the actions by the EPA constitute an un- constitutional “taking” of Northern Dynasty’s and the Pebble Partner- ship’s property. Northern Dynasty plans to ask the court to defer con- sidering this action until the EPA veto case, discussed above, has been finally
resolved. The damages for “taking“ the world’s largest undeveloped copper deposit could be very substantial. “Our priority is to advance the District Federal Court Complaint, be- cause overturning the illegal veto re- moves a major impediment from the path of getting the permit to build the proposed mine,” said Ron Thiessen, Northern Dynasty President and CEO. “The filing of the takings complaint puts the U.S. Government on notice that we will be seeking very substan- tial compensation if they continue to illegally block the lawful permit- ting process. It is basically an insur- ance policy, ensuring that this case is available to us when, or if, we decide to pursue it further,” Thiessen said. The State of Alaska will also be fil - ing similar actions in Federal District Court in Alaska and the United States Court of Federal Claims in Washing- ton, D.C.
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The Alaska Miner
Spring 2024
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