For decades, a Canadian company has sought to excavate an enormous open pit mine at the headwaters of the 40,000 square mile Bristol Bay watershed in southwest Alaska. Called the Pebble Mine, it would destroy the planet’s most productive salmon fishery and impoverish the communities the fishery sustains.
How bad would this be? The breadth of the opposition offers an idea. The entire Alaska congressional delegation opposes the project. The Trump administration denied it a permit in 2020, and this year the Environmental Protection Agency issued a rare veto, effectively blocking the mine. The project is opposed by a consortium of Alaska Native tribes that represent about 80 percent of the people who live in the region. In 2016 it was condemned by a near unanimous vote of the World Conservation Congress of the International Union for Conservation of Nature.
All of the project’s major mining partners walked away a decade ago, leaving the scheme to its financially challenged Canadian owner, Northern Dynasty Minerals.
And yet this project to extract copper, gold and molybdenum has refused to die. Alaska’s governor, Mike Dunleavy, Northern Dynasty’s inexplicably loyal disciple, is trying to revive it again.
This summer, at Gov. Dunleavy’s direction, the state bypassed the normal appeals process by going directly to the United States Supreme Court to challenge the E.P.A. veto. It’s no mystery why: Since last year, the Supreme Court has gut-punched the E.P.A. twice, first on climate change regulation and then, this spring, on clean water protection. The Dunleavy administration and the mining company are clearly hoping for another bolt of deregulatory lightning.
The court should decline the invitation.
While Gov. Dunleavy claims to be representing the interests of Alaskans, he has for years supported the development of the Pebble Mine over the strong objections of Alaskans. In fact, a recent poll found that 74 percent of Alaska’s voters are still concerned that the E.P.A.’s rejection of the project won’t do enoughto protect the Bristol Bay watershed from large-scale mining. The initial petitions that led to the E.P.A.’s veto were filed by six Bristol Bay tribes and later joined by a consortium of other federally recognized tribes.
They have been actively supported by a diverse consensus of businesses, commercial fishermen and processors, anglers and lodges, chefs and restaurant owners, hunters, conservationists and many others, including the Natural Resources Defense Council, where one of us is a senior lawyer. “Gov. Dunleavy’s lawsuit,” Alannah Hurley, the executive director of United Tribes of Bristol Bay, said in August, “is another example he is willing to waste state resources to try and save a failing foreign mining company.”
The project is on state land, and the governor said earlier this year in comments leading up to the filing of the lawsuit that “my job is to make sure that we take advantage of every opportunity.” Apparently unfazed by the project’s singular risks, he added: “I believe we have the best environmental standards in the world.”
What hangs in the balance is the greatest remaining commercial, recreational and subsistence salmon fishery on Earth, and the sustainable lifeblood of the region and its residents. Last summer alone, this single fishery produced a record run of nearly 80 million fish, surpassing a succession of annual record runs year after year. It is a natural wonder of global proportions.
The E.P.A.’s decision was based on over a dozen years of transparent review, including extensive peer-reviewed science, broad public participation and public comment — and vigorous engagement in the process by Northern Dynasty and the Dunleavy administration. Having compiled this comprehensive record, the agency concluded that the Pebble Mine would violate the Clean Water Act and cause the watershed’s globally important aquatic resources to suffer “unavoidable adverse impacts.”
The state’s complaint, on the other hand, is high on rhetoric and low on substance. It attacks the veto as a strike “at the heart of Alaska’s sovereignty” and asks the court to find that the E.P.A. has taken state “property without just compensation.” It cites no actual language to support its claim, and it ignores the Supreme Court’s unanimous 2019 decision that, in Alaska, “state, Native and private land (and waters)” do “of course remain subject to all the regulatory powers they were before, exercised by E.P.A., the Coast Guard and the like.”
Bizarrely, the state asserts with emphasis that “there is nothing the State can now do with these lands for economic purposes.” The annual salmon runs are an economic engine that generates half of the world’s sockeye salmon, yielding more than $2.2 billion a year in revenue and supporting over 15,000 jobs. The Bristol Bay watershed’s staggering economic value and job creation, all generated by the streams and waters where the salmon spawn, are exactlywhat the E.P.A.’s veto is intended to protect.
The E.P.A.’s action is consistent both with its legal authority and with what Alaskans have requested and overwhelmingly support. The Dunleavy administration has a right to appeal through the established appellate process for review of complex, fact-based agency action. But its attempt to bypass that process — and to get the Supreme Court to ignore its own precedent — should be rejected.
The state’s lawsuit highlights the need for federal legislation to permanently protectBristol Bayfrom the mining company that has relentlessly stalked the region’s communities for a generation. Despite all prior efforts to preserve the unparalleled generosity of the region’s sustainable fisheries, the only future certainty for the communities of Bristol Bay is the inevitable pressure for catastrophic large-scale mining in its headwaters. That is, unless Congress provides permanent protection for this national treasure, unruined.
Carl Safina is a marine ecologist and professor of nature and humanity at the State University of New York at Stony Brook. His most recent book is “Alfie and Me: What Owls Know and What Humans Believe.” Joel Reynolds is a senior lawyer at the Natural Resources Defense Council, where he directs the organization’s efforts in the American West.
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