OPINION: EPA’s Pebble action sets an unfair precedent for Alaska development

For more than a decade, there has been a lot written on these pages about the Pebble project and its interactions with the Environmental Protection Agency. Gov. Mike Dunleavy recently filed suit against the EPA over its actions to block the project and foreclose economic opportunity on nearly 200,000 acres of land owned by the state of Alaska. Some have questioned this litigation. It is important to outline the critical importance of this lawsuit and why so many in the business community care a great deal about it.

To begin, the issue is about process and the rules of the game for making decisions about resource development in Alaska. Businesses make decisions about investing in Alaska and our economy for a variety of reasons but among the most important is whether there is a clear and fair process for a company to follow.

In a normal process for many resource development projects, the applicant files for a permit with the U.S. Army Corps of Engineers, or USACE, under Section 404 of the Clean Water Act, aka CWA. This usually triggers a full review of the project via the environmental impact statement process. The EPA and other federal agencies participate in the EIS review and provide important technical input. If the USACE grants a permit the EPA disagrees with, the CWA grants the EPA the ability to veto the decision. These vetoes have been rarely used since the passage of the CWA as federal agencies attempt to work through significant differences.

With Pebble, things got off the rails in this process when the EPA went outside the norm and began its attempt to preemptively block the project before there was even a mine plan. The EPA just made one up and then declared that their mine plan could not be permitted. This action was on again and off again based on political winds in Washington, D.C. The veto was finalized under a Biden administration, which is reluctant to permit any major mines despite the criticality of mining, including Pebble’s copper, to its climate-change focused renewable energy goals.

In addition to stopping Pebble, this EPA action interferes with the state’s ability to manage its lands — an action that violates the deal Alaska made when it entered the union and was granted access to land selections for the purpose of establishing an economy for the state. It also violates the “no more” clause of the Alaska National Interest Lands Conservation Act, which put tens of millions of acres of Alaska’s lands into parks and wilderness areas. These issues are at the core of the state’s challenge. It is important to emphasize that the state is not the applicant in this situation, yet the EPA has effectively said to the state that it cannot develop its lands as was first envisioned in the Alaska Statehood Act. This is a de facto taking and we should all be very concerned.

It is worth noting that both Sens. Lisa Murkowski and Dan Sullivan, who have expressed opposition to Pebble, have also expressed their opposition to the use of the preemptive veto against Pebble by the EPA for many of the reasons outlined in the state’s challenge.

When we take Pebble out of this discussion, we see a federal agency seeking to use authority it was not granted under the CWA. EPA has decided it can act as a zoning agency for state-owned lands. This further precludes the state’s ability to make decisions about lands it selected under the Alaska Statehood Act. From the perspective of the business and resource community, this issue is about whether any project can get fair treatment in Alaska, because once an extraordinary precedent has been established, it becomes much easier for the bureaucracy and those who oppose development Alaska to use it again and again.

Kati Capozzi is the president and CEO of the Alaska Chamber.

Tessa Axelson is executive director of the Alaska Forest Association.

Karen Matthias is executive director of Alaska Metal Mines.

Deantha Skibinski is executive director of the Alaska Miners Association.

Rebecca Logan is president and CEO of the Alaska Support Industry Alliance.

Alicia Amberg is executive director of Associated General Contractors of Alaska.

Leila Kimbrell is executive director of the Resource Development Council for Alaska.

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