The Pebble Limited Partnership's counterattack against the Environmental Protection Agency moved to the U.S. Capitol this week, where congressional Republicans targeted what they called the agency's "predetermined" and "preemptive" effort to halt the controversial Alaska mine.
The House Oversight and Government Reform Committee on Wednesday said its investigation found that the EPA had no legal footing for its proposed effort to curtail development at the mine before permits could be submitted to the U.S. Army Corps of Engineers for review.
The letter came in advance of a hearing Thursday in another House committee, Science, Space and Technology, that opponents of the copper, gold and molybdenum prospect near Bristol Bay said was rigged with Pebble advocates.
The events gave Republican members of the House a chance to air their grievances against an agency they'd like to rein in, and to publicize documents they say shows collusion between the agency and mine opponents.
"It seems to me the EPA has acted as judge, jury and executioner in killing this project," said Rep. Randy Weber, R-Texas, and a science committee member.
The EPA fired back against the criticism, saying on Thursday that Congress gave the agency the authority to use Section 404c of the Clean Water Act to address projects that could impact U.S. waters "whenever," including before a permit is filed.
The agency has not issued a preemptive veto of the prospect, but instead has proposed limits on "allowable discharges" from a potential mine to protect Bristol Bay and its valuable salmon fishery, said Suzanne Skadowski, an EPA spokeswoman.
Three of the four witnesses appearing before the committee have done work paid for by Pebble Limited Partnership, including the company's chief executive Tom Collier.
Also appearing was former senator and Defense Secretary William S. Cohen and Charles Scheeler, senior counsel for London-headquartered law firm DLA Piper. Cohen's consulting company, the Cohen Group, is represented by Scheeler.
The Cohen Group recently released the Pebble-funded report questioning the fairness of the EPA's process without weighing in on the legality or science of the agency's decision. The report was prepared with assistance from DLA Piper.
Cohen told the committee that Congress should determine EPA's proper role and whether it should have the chance to take the unprecedented step of preemptively limiting a project, Cohen said.
"There would be serious consequences for every state if power shifted to EPA in this fashion," he said.
Former Republican state Sen. Rick Halford, a part-time resident in the Bristol Bay region, was the only Pebble opponent and Alaska resident to provide testimony.
The people of Bristol Bay have long been concerned about the danger of the prospect and approached the agency, not the other way around, Halford said. Unlike other entities, including the state of Alaska, the EPA listened.
"This is the last greatest salmon resource left on earth, the only place where you have all five species and the dependent culture totally intact," he said.
It's not the place for "a very, very dangerous experiment," he said, referring to the giant mine.
Democrats on the committee blasted the Cohen report as unreliable and a "slanted reiteration" of old theories.
Rep. Mark Takano, D-California, presented slides showing that the Vancouver, British Columbia, office of DLA Piper, a partner in the Cohen Group, had somehow been involved in a large purchase of stock in Northern Dynasty Minerals, the parent company of Pebble Limited, just weeks before the release of the consulting firm's report that potentially boosted Pebble's reputation.
Scheeler, based in the law firm's Baltimore office, said he had only learned of the purchase on Wednesday after receiving a call from a reporter. He said the firm's Vancouver office helped create a corporation to serve as an investment vehicle for a client, but the law firm itself did not acquire stock.
"This transaction did not or could not play any role in the preparation of the report because none of us knew anything about it until yesterday," he said.
Skadowski, the EPA spokeswoman, said in an email that before making its determination, the agency relied on "detailed mining plans" -- filed by the Pebble Partnership with the Securities and Exchange Commission – to assess the impacts of a large-scale mine. The plans said a "mine could result in a pit as deep as the Grand Canyon and produce up to 10 billion tons of acid-generating waste," she said.
Collier, Pebble's chief executive, said the EPA's effort is the "Antiquities Act on steroids," a reference to the law giving the president authority to lock up public lands in national monuments without Congressional approval.
"The administrator of the EPA can withdraw state and private land and essentially declare it a park without an environmental impact statement," he said. "Private landowners around America should be concerned."
Collier's assertion that Pebble only wants a "fair process" led conservation group Trout Unlimited to question why Pebble hadn't yet applied for its permits.
"Well, what are they waiting for then? Nothing is stopping them from applying for permits and beginning a review," said Nelli Williams, director of Trout Unlimited in Alaska, adding that the company has for the past decade said they're close to applying, but never do.
Collier addressed the delay in his written testimony to the committee, saying a key reason is that the actions taken by the EPA and its environmental "colleagues" have discouraged investment in the project.
"Moving a project forward into permitting under that kind of uncertainty is, quite frankly, unrealistic," he said.
Republican members of the committee showed slides of emails from EPA officials that were released by the House Oversight Committee the day before. The Oversight Committee asserted the emails showed collusion, and potentially illegal activity, between the EPA and anti-mine activists.
In a statement Wednesday, the Oversight Committee said the "most alarming" discovery in its investigation was that EPA employees "frequently provided sensitive information to mine opponents."
Conservation group Natural Resources Defense Council called the report a "mere rehash of the same old arguments we've heard for years" and said it ignores science and facts.
"This report confuses lower-level staff advocacy early in the decision-making process with a final decision by EPA directors after a comprehensive and transparent public process," said Taryn Kiekow Heimer, with NRDC.
The Oversight Committee's report also found that former EPA employee Phil North, a key scientist on the project, "should have functioned as a neutral arbiter in permitting applications," the committee found.
Instead, he "actually helped draft the tribal petition that the agency later claimed to have relied on in their determination. That same individual later left the country and avoided service of a subpoena for his testimony," the committee said.
The committee also found:
· EPA's argument that its efforts came in response to tribal petitions is "not true."
· An EPA employee sought to shield the agency from Freedom of Information Act requests.
· Former EPA administrator Lisa Jackson "dodged" advocates for the mining group.
In a case brought by Pebble Limited Partnership against the EPA, U.S. District Judge Russel Holland has ordered North, who is believed to be living in Australia, to appear in Anchorage for deposition on Nov. 12.
A spokeswoman for Pebble, Mike Heatwole, said the company will likely seek to extend that deposition to a later date.
Fifteen organizations, including numerous tribes, sport lodges and the Bristol Bay Native Corp., the regional Native corporation, want the state to investigate reclamation needs at the Pebble site to ensure the corporation cleans up the "mess" they say has been left by almost three decades of exploration at the site.
They said they are afraid Pebble is spending its limited cash fighting political battles and won't have the money to clean up the site.
Pebble officials have said there is no mess, and it intends to return and pursue the development.
Mark Myers, commissioner of the state Department of Natural Resources, said in an email the agency is reviewing the petition.
"I will tell you that Pebble's exploration program has received more oversight by state agencies than probably any other mineral exploration program ever in the state," he said. "In fact, staff recently concluded an inspection at the end of this season, and found the operation to be in good standing."