Legal battle about EPA’s authority over Pebble mine can continue, federal appeals court says

The U.S. 9th Circuit Court of Appeals will allow a legal battle over the proposed Pebble copper and gold mine to continue, in a decision released Thursday that favors the mine’s opponents.

The appeals court sent the case back to a lower court to determine if the Environmental Protection Agency in 2019 took an arbitrary action when it withdrew its proposed determination, made in 2014, to preemptively stop Pebble, according to the 39-page decision.

Trout Unlimited and several other groups sued to challenge the Environmental Protection Agency’s withdrawal.

Last year, U.S. District Court Judge in Anchorage Sharon Gleason dismissed the groups’ challenge.

But the appeals court decision reverses Gleason’s ruling, reviving Trout Unlimited’s challenge.

“Today’s ruling means that the case will be subject to further review by the district court,” said Mike Heatwole, a spokesman for Pebble Limited Partnership.

The decision is another blow to the Pebble project. The U.S. Army Corps of Engineers last year, under the Trump administration, rejected a key permit for the project. Pebble has appealed and is asking the Corps to reverse that decision. President Joe Biden said during his campaign that he opposes Pebble.

Also, an Alaska Native corporation is taking steps to block access to the deposit, and Pebble’s former chief executive resigned last fall after secretly recorded videos showed him bragging about his ties to Alaska politicians and regulators.

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Still, conservation groups say they continue to see the project as a threat to the Bristol Bay watershed that supports the prized salmon fishery in the Southwest Alaska region.

The groups want the EPA to finalize its earlier proposal, made during the Obama administration, to stop Pebble. They say that will provide durable protection for Bristol Bay and the fishery.

The groups swiftly applauded the court decision on Thursday.

The appeals court found that EPA needs to consider whether unacceptable adverse effects are likely before it withdraws a proposed determination to preemptively veto a project under the Clean Water Act.

“Today’s ruling is an important step toward providing immediate Clean Water Act safeguards for Bristol Bay,” said Nelli Williams, Alaska director for Trout Unlimited.

“Today’s ruling reinforces the need for the EPA to take immediate action to veto this dangerous mine and provide the needed and lasting protections for the people who live here,” said Alannah Hurley, executive director of the United Tribes of Bristol Bay, a plaintiff in the case representing 15 tribal governments from the Bristol Bay region.