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9th Circuit revives lawsuit over Alaska's Pebble Mine project

5 minute read

EPA headquarters in Washington, D.C. REUTERS/Ting Shen

  • Divided panel says Trump EPA's decision reviewable under the APA
  • Dissenting judge calls ruling "serious misreading" of regulations

(Reuters) - A federal appeals court on Thursday partially reversed a lower court ruling that had tossed lawsuits by business and environmental groups challenging the Environmental Protection Agency's decision to withdraw Obama-era restrictions on Alaska's contentious Pebble Mine project.

A divided panel of the 9th U.S. Circuit Court of Appeals sent the case back to an Alaska federal court with instructions to judicially review EPA's withdrawal, under President Donald Trump, of constraints the agency had previously proposed to place on the open-pit copper and gold mining project in the state's south.

An Anchorage federal judge last year had told the plaintiffs, including named appellant Trout Unlimited, an environmental group, that an Administrative Procedures Act (APA) exception precluded a judicial review of that decision.

EPA spokesperson Timothy Carroll said the agency is reviewing the 9th Circuit's decision.

A spokesperson for the mine's developer Pebble Limited Partnership, whose parent company is Canadian mining company Northern Dynasty Minerals Ltd, said that the "ruling means that the case will be subject to further review by the district court." The U.S. Army Corps of Engineers rejected in November a key water permit for the Pebble Mine. An appeal of that decision is underway, the spokesperson said.

Paul Werner of Sheppard Mullin Richter & Hampton, who represents Trout Unlimited, called the ruling "a victory for science, common sense, and the rule of law." The plaintiffs also include the Bristol Bay Economic Development Corporation.

In July 2019, the EPA withdrew a proposed Clean Water Act Section 404(c) "proposed determination" from 2014 that, if finalized, could have permanently prevented development of the mine.

An EPA regional administrator issued the proposed determination after finding the project could have "unacceptable environmental effects." The determination, if implemented, would have prohibited mining in some areas of the Bristol Bay watershed that overlap with the mine's location.

The plaintiffs sued in October 2019. The groups claimed that the mine would destroy the watershed's critical habitat for wild salmon whose fishing generates $1.5 billion annually.

They argued that EPA's decision was reviewable because it was a regulatory action.

But EPA countered that as an enforcement one, it fell under an APA exception for agency actions for which no legal-review standards exist. U.S. District Judge Sharon Gleason agreed and ruled the decision was immune from judicial review.

In Thursday's ruling, U.S. Circuit Judge Susan Garber, who wrote for the majority, said that a legal standard allowing for review of EPA's 2019 decision does in fact exist.

The majority held that EPA's internal regulations provide that once the EPA has published a notice of proposed determination that a site may be unfit for a project, it can be withdrawn "only if (the regional EPA administrator who issued it) determines that an unacceptable adverse effect is not likely."

It agreed with Gleason that the standard is nowhere to be found in the Clean Water Act, whose Section 404(c) governs EPA's power to issue proposed determination.

Garber was joined by U.S. District Judge Robert Dawson, who sat by designation.

In a dissent, U.S. Circuit Judge Daniel Bress said that the majority's ruling was a "serious misreading of the governing regulations" that had the effect of inserting courts into the political process.

The case is Trout Unlimited, et al v. Michelle Pirzadeh, et al, 9th U.S. Circuit Court of Appeals, No. 20-35504.

For Trout Unlimited, et al: Paul Werner of Sheppard Mullin Richter & Hampton

For Michelle Pirzadeh, et al: Anna Katselas with the U.S. Department of Justice

(NOTE: This story has been updated to reflect that Sheppard Mullin represents only Trout Unlimited.)

Read more:

IN BRIEF: Enviro lawsuits over Alaska's Pebble Mine project dismissed

U.S. rejects permit for Alaska's Pebble mine, company vows appeal

Developer of Alaska's Pebble mine, ex-CEO served subpoenas

Developer of Alaska's Pebble mine files appeal over permit rejection

Sebastien Malo reporters on environmental, climate and energy litigation. Reach him at sebastien.malo@thomsonreuters.com

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