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Pebble Mine’s Collier on Possible Legal Challenge: ‘Bring it On’

July 24, 2020, 4:49 PM

Tom Collier, CEO of the Pebble Limited Partnership, said he’s not worried about the threat of litigation from environmental and tribal groups who oppose the Pebble Mine project in southwestern Alaska, because he feels the final environmental impact statement is legally bulletproof.

“Bring it on,” Collier said in an interview with Bloomberg Law shortly before the final environmental impact statement was released. “I really know how to do this. It’s something I’ve spent most of my career doing.”

The final environmental impact statement was expected to be released Friday, but environmental groups received it Thursday night. It marks a major step in the giant gold and copper mine’s long journey toward permitting and eventual production.

Some environmental groups have already threatened to sue. Collin O’Mara, president and CEO of the National Wildlife Federation, said in a statement that, because the FEIS broadly supports the mine, “we will see them in court.”

But Collier said he has had a “laser-like focus in making sure this process will withstand judicial attack” since taking over the helm of Pebble.

‘A Very Simple Standard’

The legal standard for a lawsuit is whether the Army Corps took a hard look at every significant issue, Collier said.

“It’s not that they make the right decision,” he said. “It’s not whether you like it politically. It’s a very simple standard, and it’s a really high standard: Did they take a hard look? There is no question that they took a hard look here at every significant issue.”

Jim Murphy, legal advocacy director at the National Wildlife Federation, confirmed that the legal standard is whether or not the permitting agency took a hard look, but disagreed that had happened in the case of Pebble.

“They’re downplaying certain impacts and risks, which they just haven’t properly acknowledged,” said Murphy, who also serves as an assistant professor at Vermont Law School. “They haven’t fully disclosed the full extent of the risks and impacts, and they haven’t fully disclosed and analyzed the shortcomings in terms of how to deal with them. They’ve written a lot of pages, but they haven’t taken a hard look.”

Murphy also pointed to a 2014 EPA proposed determination issued under the Obama administration, which hfound that “any mine approaching the scale of Pebble simply can’t be done in a sensitive area like this,” he said.

Pebble’s mine plan has changed since then. Collier said the new plan is “entirely different” from the one the EPA commented on in 2014.

Patrick Parenteau, an environmental law professor at Vermont Law School, said a hard look “means lots of things. It means you didn’t overlook anything important or try to sweep anything under the rug. It means you used the best available science. It means you considered every foreseeable impact and every reasonable alternative.”

A “hard look” also requires an agency to “carefully weigh the competing values of maintaining a pristine, priceless, renewable natural resource—a one-of-a-kind resource—versus allowing a one-time private exploitation of a mineral resource for which there are alternatives,” Parenteau said.

The mine would be located in an area that drains into Bristol Bay, home to the world’s most productive wild salmon fishery. Environmentalists and local tribal groups in Alaska have opposed the mine, saying its impacts threaten the fishery industry.

Next Up: State Permits

Collier also said Pebble Mine will require several state permits for such things as bridges and the mine’s tailings facility dam. But he expressed optimism that those permits will be secured.

“Since, essentially, the concept has been approved, I don’t see challenges,” he said. “This is a process where they will say to us, ‘Move the piling for that particular bridge 18 inches to the left,’ and we’ll say, ‘Fine.’ But it will be a rigorous review, there’s no question about that.”

In a statement on Friday, Northern Dynasty Minerals Ltd., which owns Pebble, said it expects state permitting to take two to three years.

Alannah Hurley, executive director of the United Tribes of Bristol Bay, said she expected the state to approve the mine’s permits, based on Gov. Mike Dunleavy’s (R) strong support for the project in the past.

Outside Investors

Pebble is also trying to attract a major mining company, or a consortium of companies, with whom to partner. The company needs to raise money to get through the next few years of permitting, Collier said, although he expects that process to go smoothly, particularly given the supportive final environmental impact statement and an eventual positive record of decision from the Army Corps.

“It’s entirely possible that we could fund it by going into the market and raising the money,” he said. “That’s not our plan. That’s not our preference. Our plan is to have a major mining partner, and I think we’re going to get one. I think the FEIS and ROD [record of decision] will be significant catalysts that will encourage folks who’ve been standing on the sidelines to stop standing on the sidelines.”

The Army Corps must next submit a record of decision that either approves the permit, approve it with conditions, or denies it. The agency previously said the final decision would come in the middle of this year.

The record of decision can’t come before 30 days of the release of the final EIS, David Hobbie, chief of the regulatory division for the Army Corps’ Alaska district, told reporters this week.

Collier said he would have more confidence that funding would come through faster if not for the coronavirus pandemic that has battered the global economy.

“Who can predict this virus stuff?” he said. “Nobody’s signing anything these days.”

The Biden Factor

Collier further said he’s not worried that a potential Joe Biden administration would veto a Clean Water Act permit after Pebble has secured one. Such a veto would have to be justified by a factual and scientific record, and “our position is that this final EIS—and the reason it’s so important to us—does not provide a scientific record that justifies a veto,” he said.

But Hurley claimed the record shows “overwhelmingly in our favor” that the mine is environmentally unsound.

“We’re very hopeful that an administration that isn’t operating at the level the current administration is, when it comes to ignoring science, facts, history, reason, and logic, will prevail,” she said.

David Allnutt, a former EPA attorney and the senior career leader at the agency’s Region 10 office on Pebble Mine matters between 2013 and 2019, also said he thought a veto is possible if Biden wins the presidency.

To contact the reporter on this story: Stephen Lee in Washington at stephenlee@bloombergindustry.com

To contact the editor responsible for this story: Gregory Henderson at ghenderson@bloombergindustry.com

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