Pebble sues EPA to revive Southwest Alaska copper and gold mine prospect

The company behind the giant Pebble copper and gold mine project in Southwest Alaska filed suit against the Environmental Protection Agency on Friday to overturn its decision last year to halt the mine.

Also, the company and the administration of Gov. Mike Dunleavy on Thursday filed separate takings claims with a federal court, seeking compensation after the EPA decision blocked the prospect on state land.

“We are filing litigation to fully contest the EPA’s unprecedented and unlawful actions against the Pebble Project,” said John Shively, chief executive of Pebble Limited Partnership, in a statement from the company. “Since our objections to the politically motivated actions by the EPA have long fallen on deaf ears, we have sued the agency in federal court in Alaska to have our issues fairly and objectively heard.”

The agency in 2023 invoked a little-used power under the Clean Water Act to veto the mining project on the grounds that it would cause “unacceptable, adverse” harm to the valuable Bristol Bay salmon fishery in Southwest Alaska. The decision trumped the standard federal permitting process playing out before the U.S. Army Corps of Engineers.

The EPA declined to comment. “Because this is pending litigation, EPA has no further information to provide,” said Remmington Belford, a spokesperson with the agency.

Groups opposed to the mine said in statements Friday that Pebble would not win in court.

“Pebble Limited Partnership is proving yet again just how out of touch with reality they are,” said Delores Larson, interim director of United Tribes of Bristol Bay. “This lawsuit filed today in the Alaska District Court disregards the will of Bristol Bay Tribes and residents, Alaskans, commercial fishermen, and all those who have overwhelmingly opposed the Pebble Mine.”

The Pebble project sits on state land about 200 miles southwest of Anchorage, near the headwaters of Bristol Bay, home to the world’s largest sockeye salmon fishery.

The Bristol Bay fisheries are worth about $2 billion annually and support about 15,000 jobs and subsistence fishing for Alaska Native communities. The Pebble deposit contains minerals worth hundreds of billions of dollars, and the company says development there will create 6,000 jobs during construction and 4,000 jobs during early operations.

The mining prospect has been in the works for decades, but it has faced strong opposition from local tribes and fishing groups. The Corps under the previous Trump administration denied the project a permit under the Clean Water Act in 2020.

The company has appealed that decision.

Pebble officials have said the project can be built without harming the fishery.

“In the most recent iteration of the EPA’s actions against the Pebble Project, it issued its final decision before the permitting process had concluded and ignored any potential benefits that would come from responsible development of the Pebble deposit,” Shively said in the statement. “The EPA has also blocked activity on nearly 200,000 acres of Alaska land — land specifically identified for possible mineral development.”

Pebble and parent company Northern Dynasty Minerals filed the 38-page lawsuit in the U.S. District Court in Alaska.

The companies are asking the court to vacate the EPA’s veto of the project.

“EPA’s Final Determination is contrary to the Clean Water Act, and violates the statutes conferring the Pebble Deposit lands to the State of Alaska,” the lawsuit says. “The Final Determination is also arbitrary and capricious, an abuse of discretion, and contrary to the record that was before the EPA.”

The company also filed a takings case against the federal government this week to protect its ability to seek compensation for the EPA’s decision, Shively said.

Since acquiring mineral rights to the Pebble deposit in 2001, Pebble has invested more than $1 billion to develop it, working under the state of Alaska and interacting with the Corps to mitigate environmental impacts, the 18-page takings complaint says.

The complaint seeks “just compensation” for the company. It was filed Thursday with the U.S. Court of Federal Claims, based in Washington, D.C.

“EPA’s Final Determination is a permanent taking of PLP’s property,” the taking complaint says. “The Final Determination was intended to and did have the effect of blocking mining of the Pebble Deposit. Even if the EPA withdrew the Final Determination, the existence of the Final Determination has constituted a temporary taking from PLP up until the point of such withdrawal, because in the meantime it has blocked PLP from proceeding on its mining plans.”

The Dunleavy administration also filed a takings claim in the federal claims court Thursday. The 20-page claim says the EPA decision “effectively turns the State-owned lands into a massive federal preserve.”

“If the United States wants to seize Alaskan lands to create another federal preserve, it must at the very least pay for it,” the complaint says. “The State is entitled to damages because the United States has breached its contracts with Alaska, and the State is entitled to just compensation for the taking of Alaska’s property.”

The state argues that the EPA has violated the Alaska Statehood Act and the 1976 Cook Inlet Land Exchange Act in which the federal government conveyed the Pebble land to Alaska, while the state provided lands for the creation of Lake Clark National Park in the region.

Also, as Pebble has now done, the state last year sued the EPA over its decision.

Alaska took the unusual approach of asking the U.S. Supreme Court to directly take up the case, bypassing lower courts. The state argued that the EPA “effectively confiscated” state land, damaging Alaska’s sovereignty and regulatory powers.

The Supreme Court rejected the bid without comment in January. Dunleavy vowed to pursue the case in lower courts.