FACT: The Cohen Report Attacking EPA Is Not “Independent”

FACT: The EPA Did Not Preemptively “Veto” Or “Kill” The Pebble Mine

FACT: The EPA Did Not Shut The Company That Wants To Build The Mine Out Of The Review Process

FACT: The EPA Is Acting Within Its Legal Authority

FACT: Alaskans Overwhelmingly Oppose Building The Mine

FACT: The Mine Would Hurt Alaska's Economy

FACT: The EPA's Environmental Assessment Is Based On Sound Science

EPA Proposed Mining Restrictions To Protect Alaska's Ecologically Vital Bristol Bay

Pebble Limited Partnership Sought Approval To Build Massive Mining Project In Bristol Bay. The Pebble Limited Partnership (PLP), which is now solely owned by Northern Dynasty Minerals (the other major partners have ended their involvement), has been seeking permits to mine gold, copper and molybdenum in the Bristol Bay region of Southwest Alaska, a region “untouched by development” for thousands of years, according to the National Wildlife Federation. The region's residents expressed concern that the excavation project dubbed the Pebble Mine, which would be one of the world's largest open pit mines and produce a massive amount of toxic waste material, would put its $1.5 billion salmon industry at risk. [Alaska Dispatch News, 4/7/15; NWF.org, accessed 11/4/15; Center for American Progress, 6/27/13; Alaska Dispatch News, 5/9/13]

EPA Invoked Section 404(c) Of Clean Water Act To Protect The Region's Fisheries. In response to petitions from tribes and other stakeholders, the Environmental Protection Agency (EPA) conducted a scientific review of the suitability of large-scale mining in the Bristol Bay watershed. The agency determined that a mine in the region would have significant impacts under normal operations and could have “catastrophic effects on fishery resources” in the case of an accident, and has initiated a process under Section 404(c) of the Clean Water Act to place restrictions on mining in the region. [EPA.gov, accessed 11/4/15; 2/28/14]

MYTH: The Cohen Report Attacking EPA Is “Independent”

• The Washington Post reported: “The Environmental Protection Agency appears to have rushed to judgment when it took steps to preemptively block a proposed gold mine from being built near Alaska's Bristol Bay, according to a yearlong review of the case led by former defense secretary William Cohen. Cohen's review was commissioned by the mining company, though the former Pentagon official insisted that he agreed to review the case on the 'condition of complete independence,' with no oversight or input from the owners, the Anchorage-based Pebble Partnership.” [The Washington Post, 10/6/15]
• A FoxNews.com article stated that Cohen, “when hired by Pebble Partnership pledged to follow the facts and not an agenda.” It also asserted: “The report from Cohen, a former politician and cabinet secretary respected on both sides of the aisle in Washington, may add heft to the position of Pebble Partnership, which is still fighting in court to revive the project.” [FoxNews.com, 10/8/15]
• The Hill reported that although the report was “was commissioned by the Pebble Partnership,” Cohen “said he conducted the analysis independently and gave Pebble no special treatment.” [The Hill, 10/6/15]
• The Daily Caller claimed that the Cohen report was conducted by “an independent investigator.” [Daily Caller, 10/6/15]

FACT: Cohen Report Is Not “Independent,” Transparent, Accurate, Or Meaningfully Different Than Pebble Partnership's Own Claims

NRDC Analysis: Cohen's Arguments Are “Biased,” Report Simply Repeats Pebble Limited Partnership's Claims. On November 4, the Natural Resources Defense Council (NRDC) released an analysis of the Cohen report, which noted that Cohen had a conflict of interest in determining that Pebble Limited Partnership was treated unfairly by the EPA, and pointed out that the report's arguments simply recycle past claims made by PLP and its consultants. The NRDC analysis also identified several other major issues with Cohen's analysis. In an accompanying press release, NRDC summarized the conclusions of its analysis:

• EPA actually carried out “a methodical scientific review” over a period of four years, highlighted by “extraordinarily comprehensive” public participation; 
• Cohen's arguments that EPA had acted prematurely and treated PLP unfairly are “unreliable” and biased, because his paying client has a direct financial stake in the study;
• Cohen's report “confuses lower-level staff advocacy within an agency early on in the decision-making process with the final decision made by the upper level agency managers with the benefit of a comprehensive and transparent public process”;
• Cohen “also conflates the policy making process ... with the scientific review process”; and,
• Cohen's report “contributes nothing to the proceedings ... in Bristol Bay beyond the arguments previous articulated on numerous occasions by PLP itself and its consultants. Under these circumstances, it should unquestionably be ignored.” [NRDC, 11/4/15; 11/4/15]

NRDC Analysis: Partner At Law Firm That Helped Produce Cohen Report Has Financial Ties To Company Behind Pebble Mine. The NRDC analysis noted that a partner at DLA Piper LLP, the law firm that worked with Cohen's firm to produce the report, “was recently the sole director of a company with a direct financial interest” in the company seeking the build Pebble Mine:

[I]t appears that a partner at DLA Piper LLP was recently the sole director of a company with a direct financial interest in Northern Dynasty Minerals (“NDM”), now the sole “partner” in the Pebble Partnership. With the exodus by April 2014 of all of its major investors--Mitsubishi in 2011, Anglo American in 2013, and Rio Tinto in 2014--NDM has several times sought to raise capital through the issuance of special warrants. Notably, the most recent sale of NDM special warrants resulted in the investment on August 28, 2015 of about $3.6 million (8,947,368 Special Warrants at $0.399/share) by a company named 1047208 B.C. Ltd. 1047208 B.C. Ltd. was incorporated on August 27, 2015--the day before the special warrant sale and in advance of the October 6, 2015 release of the Cohen Report critical to EPA's treatment of NDM. The sole director of 1047208 B.C. Ltd is Stuart B. Morrow, and its registered address is 2800 Park Place, 666 Burrard Street Vancouver, BC V6C 2Z7. Stuart Morrow is a partner at DLA Piper. 666 Burrard Street Vancouver, BC V6C 2Z7 is the same address as DLA Piper's Vancouver office. As described above, the Cohen Report does not provide the level of author detail needed to ascertain Mr. Morrow's involvement, if any. [NRDC, 11/4/15]

NRDC: Media Should Not Accept At Face Value That Cohen Report Is “Independent.” In an October 7 blog post, Natural Resources Defense Council (NRDC) Western Director and Senior Attorney Joel Reynolds said it's “hard to understand” why the media would accept the Cohen report as “independent,” and noted that Cohen “repeatedly emphasizes the word 'independent' as if its numbing recitation might magically serve as a kind of invisibility cloak” over the funding he and his firm received to produce the report:

It's easy to understand why the cash-starved Pebble Partnership, now just a single small Canadian exploration company called Northern Dynasty Minerals, would hire former Defense Secretary William Cohen to review EPA's proposed restriction of Pebble's planned massive copper and gold mine in Alaska's Bristol Bay region -- and then try to pass that review off as “independent.” Pebble wants to prolong the life of its all but dead mining scheme in the hope that it can turn its shareholders' virtually worthless shares into something valuable enough to sell - and salvage some kind of return on their investment.

But it's harder to understand why the media would treat this transparent sham of an “independent review” as legitimate - or, for that matter, why Cohen would attach his substantial reputation to it. In his press release and report, he repeatedly emphasizes the word “independent” as if its numbing recitation might magically serve as a kind of invisibility cloak over the mountain of cash that Pebble paid him and his firm to join its choir. [NRDC, 10/7/15]

Rep. Tonko: EPA “Used A Far More Rigorous And Public Process” Than Cohen Report. In a November 5 Congressional hearing, Rep. Paul Tonko (D-NY) questioned Cohen about whether or not the report's methodology or conclusions were subject to outside review. During the questioning, Cohen admitted that he did not disclose the names or affiliations of the people he solicited to participate in the report, nor of those who responded. Cohen also admitted he did not provide preliminary drafts of the report to the public, the EPA, or those who participated in the review, and that the report itself was not subjected to peer-review. Tonko concluded:

If I had an EPA witness here, the responses would have demonstrated that they used a far more rigorous and public process to conduct its business than you used to produce this document. This document is little more than a slanted reiteration of the timeline of events. It deals with neither scientific nor legal issues. Your report was privately commissioned and done in a closed process that was subject to little scrutiny. It appears to be little more than your opinion, an opinion that just happens to align with that of your client. I'd like to point out one small example of the report's bias. Your report describes numerous meetings and communications between EPA and your client in objective, dispassionate terms. Fine. But when it comes to describing contacts between EPA and any of your client's opponents, all of a sudden these are evidence of bias on the part of the agency. [House Science Committee Hearing, “Examining EPA's Predetermined Efforts to Block the Pebble Mine,” 11/5/15 (beginning at 2:34:00)]

United Tribes Of Bristol Bay: Report Is “Desperate PR-Stunt.” When Alannah Hurley, the Executive Director of the United Tribes of Bristol Bay, learned in March that Cohen would be paid to review the EPA's process, she said: “This is more of the same desperate PR-stunt, a bought-and-paid-for review, from a company who has lost on the science, who has lost on the truth, who has lost on public opinion.” [NRDC Switchboard, 3/27/15]

Fishermen Groups Criticized Cohen Report As “Smear Tactic” That “Ignores Science.” Hatch Magazine compiled criticisms of the Cohen report from Commercial Fisherman for Bristol Bay and Trout Unlimited:

Commercial Fishermen for Bristol Bay, issued a statement calling the report “nothing more than a smear tactic attempting to distract and mislead the public and decision makers from the threats posed by the Pebble mine and fact that the majority of Bristol Bay residents, stakeholders and Alaskans are overwhelmingly opposed to the project.”

Trout Unlimited said the report “ignores science” and “fails to address actual facts”. Nelli Williams, director of Trout Unlimited's Alaska Program, added that the “Pebble Limited Partnership has once again chosen to spend its money on costly lawsuits and high-paid Washington, D.C. insiders instead of following through on more than a decade of promises made to the people of Bristol Bay to apply for permits. Alaskans have every right to be disgusted at yet another Pebble-funded attempt to discredit the legal, thorough and transparent process enacted to protect a unique and valuable Alaskan salmon watershed from what would be the world's largest open-pit mine.” [Hatch, 10/7/15]

MYTH: The EPA Preemptively “Vetoed” Or “Killed” The Pebble Mine

• The Washington Post reported that the EPA “moved to effectively bar mining in the region before the developers had even applied for permits to build the mine.” [The Washington Post, 10/6/15]
• The U.S. Chamber of Commerce posted a blog headlined: “EPA Isn't Being Honest About How It Killed an Alaska Mine.” [5/18/15]
• In an article about the Cohen report, The Daily Caller reported that “Cohen found that the EPA's 'unprecedented, preemptive' use of the Clean Water Act to kill the Pebble Mine relied on a hypothetical mining project that 'may or may not accurately or fairly represent an actual project.'” The Daily Caller article also claimed that “Cohen's report suggests that EPA colluded with environmentalists to kill the mine before it could even begin the permitting process.” [Daily Caller, 10/6/15]
• A Wall Street Journal editorial attacked “the EPA's ideological decision to veto the proposed Pebble Mine in Alaska even before the EPA had conducted a scientific review.” [The Wall Street Journal, 6/3/15]
• Wall Street Journal columnist Kimberley Strassel alleged that the EPA issued a “pre-emptive veto of the Pebble Mine.” Strassel further claimed that the EPA's insistence it did not veto the Pebble Mine project was merely “semantics,” adding: “The 'restrictions' are that Pebble can't build its mine, or for that matter even a significantly smaller one. Veto, restrictions, it's all the same thing. The EPA killed the project.” [The Wall Street Journal, 5/21/15]

FACT: EPA Didn't Veto The Mine -- It Proposed Environmental Standards That The Project Would Have To Meet

EPA Proposed Environmental Criteria Mining Project Would Need To Meet. The EPA's website notes:

EPA Region 10's proposal to protect the Bristol Bay watershed outlines restrictions that would protect waters that support salmon in and near the Pebble deposit area. The restrictions of this proposal are for impacts associated with mining the Pebble deposit and will not affect other mining operations.

EPA Region 10 has initially concluded that mining the Pebble deposit would affect the South Fork Koktuli River, North Fork Koktuli River and Upper Talarik Creek watersheds. The proposed restrictions are outlined in a document called the Proposed Determination. The restrictions are based on the construction and operation of a 0.25-billion-ton mine. This was the smallest of the three mine scenarios EPA analyzed and significantly smaller than the mines articulated to Northern Dynasty Minerals investors. [EPA.gov, accessed 11/4/15]

EPA Proposal Restricts Discharge Of Waste Materials Into Watershed Surrounding Proposed Mine. The EPA states:

EPA Region 10 proposes to restrict the discharge of dredged or fill material related to mining the Pebble deposit into waters within the mine claims held by Northern Dynasty Minerals' subsidiaries, including Pebble Limited Partnership, that fall within the watersheds draining the Pebble deposit. EPA Region 10 has found that the development of a 0.25-billion-ton mine or larger would create the following unacceptable adverse effects on fishery areas in the Bristol Bay watershed:

• Loss of Streams: The loss of five or more miles of streams with documented salmon occurrence (coho, Chinook, sockeye, chum, pink); or the loss of 19 or more miles of streams where salmon are not documented, but that are tributaries of streams with documented salmon occurrence
• Loss of Wetlands, Lakes, and Ponds: The loss of 1,100 or more acres of wetlands, lakes, and ponds that connect with streams with documented salmon occurrence or tributaries of those streams
• Streamflow Alterations: Streamflow alterations greater than 20 percent of daily flow in nine or more linear miles of streams with documented salmon occurrence

According to EPA records, losses of the nature and magnitude listed above would be unprecedented for the Clean Water Act Section 404 regulatory program in the Bristol Bay region, as well as the rest of Alaska and perhaps the nation. [EPA.gov, accessed 11/4/15]

Pebble Limited Partnership Still Free To Pursue Project Provided It Meets Environmental Criteria. In a comment letter to EPA Administrator Gina McCarthy, a coalition of environmental groups noted that mining projects that are smaller than EPA's threshold of 0.25 billion tons “would still be considered through the standard Army Corps permitting process”:

EPA has proposed limits on environmental impacts that are tied directly to the Watershed Assessment findings of “unacceptable adverse effects”--the regulatory threshold for 404(c) action. Far from a preemptive “veto,” the regulations would apply only to mining proposals that threaten harm at or above the level of a 0.25 billion ton mine. Smaller mining projects would still be considered through the standard Army Corps permitting process - a reasonable approach, based on the facts. [Environmental groups' EPA comment letter, 9/19/14]

A statement from Bristol Bay United similarly noted:

Even Northern Dynasty Minerals acknowledges that the EPA's action is not a pre-emptive veto. Pebble Limited Partnership (PLP) is still free to apply for the required Army Corps of Engineers permit, both as the EPA completes its determination and after, if it can meet these standards which guarantee protections for the Bristol Bay salmon fishery. [The Fishing Wire, 8/11/14]

MYTH: The EPA Is Shutting Pebble Limited Partnership Out Of Process, Not Allowing Company To Submit Permit

• The Washington Post reported: “The report is the latest to challenge the EPA's proposed use of a rare regulatory 'veto' to block the mine under the rules of the Clean Water Act, rather than allowing the owners to submit detailed plans for the mine and argue their case before a review board.” [The Washington Post, 10/6/15]
• Wall Street Journal columnist Kimberley Strassel wrote: “The law says that Pebble gets to apply for permits, and the Army Corps of Engineers gets to give thumbs up or down. The EPA, a law unto itself, instead last year blocked the proposal before applications were even filed.” [The Wall Street Journal, 5/21/15]
• The Washington Times reported that the Cohen report found that the EPA's assessment “failed to take into account 'mitigation and control techniques a developer might propose.'” [Washington Times, 11/4/15]
• The Daily Caller asserted that a report by Republicans on the House Science Committee “outlines how the EPA was determined to block to Pebble Mine before it could even submit any actual plans or begin the permitting process. ... The [EPA] found the mine would harm the region, but based its conclusion on 'hypothetical' mines and not on actual plans by Pebble's developers.” [Daily Caller, 11/5/15] 

FACT: Pebble Limited Partnership Readily Participated In EPA Review Process, But Failed To Apply For Permits For Years

EPA's Proposed Determination Extensively Detailed Involvement Of Pebble Limited Partnership And Northern Dynasty Minerals In Review Process. In the document in which it proposed invoking Section 404(c) of the Clean Water Act to restrict mining in Bristol Bay, the EPA provided an extensive accounting of the interactions it had with Pebble Limited Partnership and Northern Dynasty Minerals before reaching the determination: 

As a first step in the regulatory process pursuant to Section 404(c), EPA Region 10 coordinated with [Northern Dynasty Minerals] NDM, the Pebble Limited Partnership (PLP), and the State of Alaska to provide them an opportunity to submit information that demonstrated either that no unacceptable adverse effects would result from discharges associated with mining the Pebble deposit or that actions could be taken to prevent unacceptable adverse effects on fishery areas. EPA Region 10 met with both NDM/PLP and the State of Alaska and extended the time period for both to submit this information. Both NDM/PLP and the State of Alaska submitted information that raised scientific and technical issues, most of which had been previously raised in public comments on the Bristol Bay Assessment. However, this information did not demonstrate to the satisfaction of EPA Region 10 that no unacceptable adverse effects on fishery areas will occur should the disposal of dredged or fill material associated with mining the Pebble deposit proceed. 

[...]

In 2005, EPA Region 10 formed an internal interdisciplinary team to engage in the consultation and review process, and participated in several Pebble deposit site visits with NDM. EPA Region 10 also participated in NDM's community leaders meeting. 

[...]

There have been 10 pre-application meetings between PLP and [the U.S. Army Corps of Engineers] USACE, not including meetings for Nationwide Permit 6 permit actions, since January 12, 2009 (Kochenbach pers. comm.). 

[...]

In 2010, EPA met, at their request, with stakeholders who support and stakeholders who oppose a mine at the Pebble deposit to hear their concerns and receive any information they wished to provide. These meetings occurred in the villages in the Bristol Bay watershed, Anchorage, Seattle, and Washington, D.C.

[...]

EPA Administrator Jackson and Regional Administrator McLerran visited Alaska in August 2010 to learn about the challenges facing rural Alaska towns and Alaska Native villages. Their itinerary included a meeting with PLP for a briefing on the proposed mining of the Pebble deposit.

[...]

June 2011. EPA Senior Policy Counsel Robert Sussman, EPA Acting Assistant Administrator for Water Nancy Stoner, and Regional Administrator McLerran met with PLP, toured the Pebble deposit site, and visited five Alaska Native villages.

[...]

August 2013. EPA Administrator Gina McCarthy and Regional Administrator McLerran met with PLP, toured the Pebble deposit site, and held public meetings in the villages of Iliamna and Dillingham. 

[...]

After careful consideration of available information, including the [Bristol Bay Assessment] BBA and extensive information provided by NDM/PLP, EPA Region 10 announced on February 28, 2014, its decision to proceed under CWA Section 404(c) regulations, 40 CFR Part 231, to review potential adverse environmental effects of discharges of dredged or fill material associated with mining the Pebble deposit. 

[...]

Section 404(c) regulations provide 15 days for responding to this request. In response to requests for additional time, EPA Region 10 sent letters to PLP and to the Alaska Attorney General on March 13, 2014, granting a 45-day extension (until April 29, 2014) to respond to the Section 404(c) initiation letter.

EPA Region 10 held two meetings on March 25, 2014, one with PLP executives and one with the Alaska Attorney General. On April 29, 2014, PLP and the Alaska Attorney General separately provided information as part of the initial Section 404(c) consultation period. These submittals raised a number of legal, policy, scientific, and technical issues, including questions regarding EPA's authority to initiate a Section 404(c) review at this time, the scientific credibility of the BBA, and whether the BBA should be used to inform decision-making under Section 404(c). Most of the scientific and technical issues detailed in these documents had been raised before; EPA has provided responses to these issues in individual correspondence to PLP and the Alaska Attorney General and, most comprehensively, in the 400-page BBA Response to Peer Review Comments document released in January 2014 and the 1,200-page BBA Response to Public Comments documents released in March 2014. [EPA, Proposed Determination of the U.S. Environmental Protection Agency Region 10 Pursuant to Section 404(c) of the Clean Water Act, July 2014]

Justice Department Attorney: “If Anything, Pebble Had Unprecedented Access To The EPA.” Alaska Journal of Commerce reported that Justice Department Attorney for the EPA Brad Rosenberg said “the EPA had the same type of contact with Pebble as it did with the groups and individuals Pebble claims it conspired with to stop mine development”:

Justice Department attorney for the EPA Brad Rosenberg said the agency did not violate the Federal Advisory Committee Act as Pebble contends, because the EPA had the same type of contact with Pebble as it did with the groups and individuals Pebble claims it conspired with to stop mine development.

[...]

Pebble claims it was shut out of the assessment process, but it had regular contact with EPA staff at all levels beginning in 2003, Rosenberg argued. “Pebble had a role in creating the Bristol Bay Watershed Assessment,” he said. “If anything, Pebble had unprecedented access to the EPA.” Rosenberg said the EPA officials all they way up to the administrator met with Pebble about 30 times from 2003 to 2013. [Alaska Journal of Commerce, 10/8/15]

EPA Spokeswoman: Process Was “Transparent And Inclusive Of All Views, Including For Proponents Of The Pebble Mine.” The Hill reported that EPA spokeswoman Melissa Harrison noted Pebble Partnership “readily participated” in the EPA review process:

EPA spokeswoman Melissa Harrison defended the agency's process.

“EPA staff spent three years evaluating science, conducting hearings and reviewing one million public comments in developing the Bristol Bay Watershed Assessment,” she said.

“That process included two independent peer reviews and a robust public outreach process in which Pebble Partnership readily participated,” Harrison continued. “No process could have been more transparent and inclusive of all views, including for proponents of the Pebble Mine.” [The Hill, 10/6/15]

GOP Senator Lisa Murkowski Criticized Pebble For Failing To File Permits. In July 2013, McClatchy reported that Sen. Lisa Murkowski (R-AL), who supports the project, criticized Pebble Limited Partnership's “inaction in the permitting process” and called for the company to release its plans and timeline:

Sen. Lisa Murkowski, R-Alaska, this week called for the release of Pebble Partnership's detailed plans and a timeline for developing the Pebble Mine site near the headwaters of Bristol Bay in Southwest Alaska.

In a letter to the leaders of Pebble Partnership released Tuesday, Murkowski said the group's inaction in the permitting process continues to cause anxiety and confusion in the Alaskan communities near the site, located nearly 200 miles southwest of Anchorage on one of the largest salmon runs in the world.

[...]

Murkowski says Pebble Partnership's failure to permit the project led to a “vacuum” that the EPA filled with hypothetical mine scenarios in its watershed assessment. The failure to take the next step has led to environmental anxiety and nearly a decade of waiting for Alaskan residents.

“Today, after years of waiting, it is anxiety, frustration and confusion that have become the norm in many communities - rather than optimism about the new economic opportunities that responsible development of the Pebble deposit might be able to deliver,” Murkowski said. [McClatchy, 7/9/13]

Alaska Residents: EPA Only Acted “After Years Of Waiting” For Pebble To File Permits. Bristol Bay fishing lodge owner Brian Kraft and commercial fisherman and Naknek Native Village Council tribal member Everett Thompson wrote in an op-ed for The Hill:

Beginning as far back as 2004, mine proponents promised they would show us how they plan to develop the mine and start a public process so we could weigh in. They promised that salmon wouldn't be traded for gold and that we can have both.

Given this, initially we agreed to hear them out. Without harming salmon, additional jobs would be welcome for our communities. But, time and again, their promises were broken.

First, they applied for the right to use all the water in two streams of critical importance to our salmon. Then, back in D.C. they released a report to their shareholders and filed with the Securities and Exchange Commission (SEC) that showed nearly 11 billion tons of mine waste would need to be stored at the headwaters of the two major rivers in our region that provide over half the world's sockeye salmon. Pebble conveniently had a plan when it was in their best interest, but didn't have a plan when it came to applying for permits and starting a process where we could weigh in.

[...]

Although we don't typically welcome the federal government into our state with open arms, after years of waiting we eventually asked the EPA to use Clean Water Act section 404(c) to begin a process based upon science and the plans Pebble has put forth where Alaskans could weigh in and not be forced to wait at the mercy and political whims of a foreign mining company.

The op-ed writers also noted that the Cohen report claims EPA “should have waited for the company to file for its permit applications before they worked to help protect the region,” but that the report “omits the water rights applications and SEC filings from Pebble with thousands of pages of plans. It also omits the fact that many Alaskans, including our pro-resource development Sen. Lisa Murkowski (R-Alaska), have requested the company file its permits for years and still we continue to wait for federal permit applications.” [The Hill, 11/3/15]

MYTH: The EPA Went Beyond Its Statutory Authority

• Wall Street Journal contributor Kimberley Strassel wrote: “The law says that Pebble gets to apply for permits, and the Army Corps of Engineers gets to give thumbs up or down. The EPA, a law unto itself, instead last year blocked the proposal before applications were even filed.” [The Wall Street Journal, 5/21/15]
• The Wall Street Journal editorial board wrote: “It is by now beyond dispute that the Environmental Protection Agency went rogue when it halted Alaska's proposed Pebble Mine project,” adding that the Cohen report is “an eye-opening tale of government abuse of power and disregard for the law.” [The Wall Street Journal, 10/5/15]
• The Charleston Gazette-Mail editorial board cited Pebble Mine as an example of the EPA “reaching well beyond its statutory regulatory authority.” [Charleston Gazette-Mail, 10/10/15]
• The Washington Post reported: “By employing a rare preemptive 'veto' -- a tactic used only once in this manner in 40 years -- the EPA has made itself the target of congressional Republicans who say the agency has stepped far outside the boundaries lawmakers envisioned with the adoption of the Clean Water Act in the 1970s.” [The Washington Post, 2/15/15]

FACT: EPA Has Authority Under Clean Water Act To Protect Bristol Bay

EPA Authorized To “Prohibit, Restrict, Or Deny” Waste Dumping Activities “Whenever It Determines ... Unacceptable Adverse Impact.” The EPA is required under the Clean Water Act to regulate pollution and waste discharged into U.S. waters. The EPA explains how Section 404 (c) authorizes the agency to prohibit or restrict disposal sites “whenever it determines ... that use of such sites for disposal would have an unacceptable adverse impact” on environmental resources:

Section 404(c) authorizes EPA to prohibit, restrict, or deny the discharge of dredged or fill material at defined sites in waters of the United States (including wetlands) whenever it determines, after notice and opportunity for public hearing, that use of such sites for disposal would have an unacceptable adverse impact on one or more of various resources, including fisheries, wildlife, municipal water supplies, or recreational areas. [EPA.gov, accessed 11/4/15; EPA.gov, accessed 11/4/15]

In its analysis of the Cohen report, NRDC similarly noted that the Clean Water Act “authorizes EPA to undertake 404(c) action in a proactive manner”:

It is beyond dispute that the CWA authorizes EPA to undertake 404(c) action in a proactive manner to prevent certain areas from being used as disposal sites for mining waste or other dredged or fill material. As explained by the D.C. Circuit, the statute “imposes no temporal limit” on EPA's authority to exercise its 404(c) authority “whenever” it makes a determination that an “unacceptable adverse effect” would result because, by using the “expansive conjunction 'whenever,' the Congress made plain its intent to grant the Administrator authority to prohibit/deny/restrict/withdraw a specification at any time.” [NRDC, 11/4/15]

Even Cohen Report Acknowledged EPA Authority To Proactively Use Section 404(c). As the NRDC analysis noted, even the Cohen report "[a]ccept[s] EPA's statutory authority to take action to protect the environment whenever it determines unacceptable adverse effects may result from development activities." [NRDC, 11/4/15; Cohen Report, 10/6/15]

MYTH: By Acting Against Mine, The EPA Is Thwarting The Will Of Alaskans

• In a FoxNews.com column, Fox Business host John Stossel wrote that “Alaskans who still live near the Pebble Mine site say the activists killed their dreams,” by “reject[ing] the mine before Pebble even got its application in.” [FoxNews.com, 7/29/15]
• In an article headlined, “Pebble Mine: Alaskans don't want feds, enviros deciding their future,” The Washington Examiner reported that “Iliamna [AK] community members ... worry that the EPA could drop a regulatory hydrogen bomb on the town's potential -- Section 404(c) of the Clean Water Act, which could pre-emptively kill the mine project before a plan is submitted.” [Washington Examiner, 8/28/13]
• FoxNews.com reported: “Pebble officials say the project has support from Alaskans, and deny that it would imperil fish. Several local groups have weighed in either in favor of the project, or for giving the public more time to debate it.” [FoxNews.com, 7/24/12]
• The Washington Post reported that Sen. Lisa Murkowski (R-AK) said the EPA's move to restrict the mining project “strips Alaska and all Alaskans of the ability to make decisions on how to develop a healthy economy on their lands.” [The Washington Post, 2/15/15]

FACT: A Majority Of Alaskans Oppose The Mine, Concerned About Its Threat To Way Of Life

Bristol Bay United Poll: 62 Percent Of Alaskans Oppose Pebble Mine. NRDC reported that a June 2014 poll from Bristol Bay United found that 62 percent of likely Alaskan voters oppose the Pebble Mine, and only 33 percent support it. From NRDC:

The poll reveals that opposition to the Pebble Mine remains strong across Alaska, with 62% of likely Alaskan voters opposing the mine and only 33% supporting it. The intensity gap is also glaring: 47% of respondents are “strongly opposed” to the mine and only 16% “strongly support” it. Notably, the opposition crosses political and ideological lines.

The poll also reveals the strong support for EPA action to protect Bristol Bay: 55% support EPA action to deny Pebble Mine the federal permit necessary to move forward. [NRDC, 6/13/14]

In 2014 Ballot, 65 Percent Of Voters Favored Giving State Right To Reject Mine. In November 2014, 65 percent of Alaskans voted in favor of a ballot measure known as the Bristol Bay Forever Initiative. Alaska Dispatch News reported that the measure “would enable the Alaska Legislature to ban proposed mining in the Bristol Bay watershed if lawmakers believe the project would endanger wild salmon stocks.” [Alaska Dispatch News, 11/4/14]

73 Percent Of Public Comments Submitted To EPA Supported Protecting Bristol Bay, Including 98 Percent of Comments Submitted By Bristol Bay Residents. According to Commercial Fisherman for Bristol Bay, a 2013 analysis found that nearly three-quarters of the comments submitted to the EPA during the second comment period on its draft Bristol Bay Watershed Assessment supported the EPA's efforts to protect Bristol Bay. Of the comments submitted by Alaska residents, 84 percent supported the EPA. And of those submitted by Bristol Bay residents, 98 percent supported the EPA. [Fishermenforbristolbay.com, 9/16/13]

81 Percent Of Bristol Bay Native Corporation Shareholders Oppose Pebble Mine. A 2011 survey of Bristol Bay Native Corporation (BBNC) shareholders found that 81 percent of shareholders opposed the Pebble Mine, a 12-percent increase from 2007, when BBNC first conducted its survey. [BBNC.net, 11/22/11; Alaska Dispatch News, 11/2/11]

Alaskans Oppose Pebble Mine's Threat To Fisheries. In the June 2014 Bristol Bay United poll, 70 percent of respondents stated that “Pebble Mine poses a threat to Alaska's fishing industry, with 51% believing that it could create a 'great deal' of risk.” [PR Newswire, 6/12/14]

Tribal Council President: Mine Threatens “Our Way Of Life.” When EPA Administrator Gina McCarthy visited Bristol Bay in August 2013, “everyone who spoke to McCarthy” in a Bristol Bay fishing town opposed the mine, as McClathy reported, including Nondalton Tribal Council President William Evanoff, who said, "[n]o amount of money or jobs can replace our way of life." The EPA has also noted that “Bristol Bay's fishery resources have supported a subsistence-based way of life for Alaska Natives for over 4,000 years.” [McClatchy, 8/28/13; EPA.gov, accessed 11/4/15]

Myth: Opposing Pebble Mine Is Bad For Alaska's Economy

• A Forbes contributor wrote that the EPA's efforts to protect Bristol Bay “threaten 30,000 jobs and a billion dollar mining project.” [Forbes, 1/31/14]
• FoxNews.com reported that Pebble Partnership spokesman Mike Heatwole “doesn't understand why the EPA jumped to block a mine he says will benefit the ailing state economy.” [FoxNews.com, 7/24/12]
• A blog post on Minerals Make Life stated: “New mining projects, like the Pebble Mine, could provide a number of benefits to local and state economies, including community investments, job creation and greater infrastructure to remote areas.” [Minerals Make Life, 8/22/14]
• A blog post at The Lonely Conservative stated: “Regular readers have seen my coverage of the Pebble Mine project and how the EPA is doing everything in its power to destroy the jobs it would create, not to mention leaving the natural resources our current lifestyles depend on in the ground.” [The Lonely Conservative, 7/25/13]

FACT: Building Pebble Mine Would Threaten $1.5 Billion Salmon Industry And Could Wipe Out Thousands Of Jobs

University Of Alaska Report: Bristol Bay Salmon Industry Produces $1.5 Billion In Economic Output Annually. A 2013 report conducted by researchers at the University of Alaska's Institute for Social and Economic Research about the economic impacts of the Bristol Bay sockeye salmon fishery found that in 2010, “harvesting, processing, and retailing Bristol Bay salmon and the multiplier effects of these activities created $1.5 billion in output or sales value across the United States.” From the report's executive summary:

In 2010, Bristol Bay salmon fishermen harvested 29 million sockeye salmon worth $165 million in direct harvest value alone. That represented 31% of the total Alaska salmon harvest value, and was greater than the total value of fish harvests in 41 states. Salmon processing in Bristol Bay increased the value by $225 million, for a total first wholesale value after processing of $390 million. The total value of Bristol Bay salmon product exports in 2010 was about $250 million, or about 6% of the total value of all U.S. seafood exports.

In 2010, the Bristol Bay sockeye salmon fishery supported 12,000 fishing and processing jobs during the summer salmon fishing season. [Fishermenforbristolbay.com, April 2013]

EPA Assessment: Bristol Bay Supports World's Largest Salmon Run, Other Key Fisheries. The EPA's peer reviewed, multi-year Bristol Bay Watershed Assessment found that “the Bristol Bay watershed was pivotal and unique,” and noted its key findings on productivity in the region:

Bristol Bay supports the largest sockeye salmon run in the world, producing approximately 46 percent of the world's wild sockeye.

The Bristol Bay region is home to 31 Alaska Native Villages. Residents of the area depend on salmon both as a major food resource and for their economic livelihood. Nearly all residents participate in subsistence fishing.

The annual average run of sockeye in Bristol Bay was approximately 37.5 million fish between 1990 and 2010. In 2009, Bristol Bay's wild salmon ecosystem generated $480 million in economic activity and provided employment for over 14,000 full and part-time workers.

All five species of Pacific salmon spawn and rear in the Bristol Bay watershed: coho, Chinook, sockeye, chum and pink. In addition, the Nushagak River supports one of the world's largest Chinook salmon runs.

The Bristol Bay watershed provides habitat for 29 fish species, more than 190 bird species, and more than 40 terrestrial animals. [EPA.gov, accessed 11/4/15]

Center For American Progress Report: Bristol Bay's “Undeveloped Ecosystem” Is “Critically Important” To Region's Alaska Natives And Economy. A 2013 report from Center for American Progress titled “Mining in Alaska's Bristol Bay Region Threatens a Sustainable Economy” found:

The Bristol Bay area's undeveloped ecosystem and the salmon fishery that it supports are also critically important to the region's Alaska Natives, particularly the Dena'ina and the Yup'ik people. Anthropologist Dr. Alan Boraas, who worked on a watershed assessment conducted by the U.S. Environmental Protection Agency, or EPA, noted that the area supports the last remaining indigenous culture that relies completely on wild salmon runs.

[...]

The Bristol Bay region also attracts recreational anglers from around Alaska and beyond, who come for both the salmon runs and world-class rainbow trout. In the last major study on the sector, researchers from the U.S. Forest Service reported that sport fishing is the region's most important economic activity outside the commercial salmon harvest, with more than $61 million spent in Alaska in 2005 on Bristol Bay fishing trips. Wildlife viewing and other types of tourism are also important economic drivers, supporting thousands of visits to Bristol Bay annually. [Center for American Progress, 6/27/13]

MYTH: The EPA Watershed Assessment Was Based On "Junk Science"

• The Wall Street Journal editorial board wrote: “EPA's decision to ignore regular procedure led to basic flaws in science and procedure, making impossible a remotely 'fair' evaluation.” [The Wall Street Journal, 10/5/15]
• A Forbes contributor wrote that the advocates who support EPA's scientific assessment of the Bristol Bay “do not want the EPA to review the years of water, soil, and environmental data collected by the Pebble Mine's developers - no debate, no discussion, end the application process before it begins.” [Forbes, 1/31/14]
• The Forbes contributor also wrote: “The best part about this whole charade is the EPA's attempt to present itself as an apolitical entity. According to the EPA, their new paper is 'a scientific assessment, it does not discuss or recommend policy, legal, or regulatory decisions, nor does it outline or analyze options for future decisions.' This is nonsense.” [Forbes, 1/31/14]
• FoxNews.com published an op-ed from Pebble Partnership CEO John Shively stating that the EPA's draft watershed assessment was “completely unscientific, but predictably, the NRDC says it's good enough to justify premature action by the EPA.” [FoxNews.com, 8/1/13]

FACT: EPA Acting Based On Years Of Scientific Research

EPA Assessment Completed Over Several Years, Subjected To Multiple Peer Reviews. The EPA stated, as reported by E&E News:

“EPA staff spent three years evaluating science, conducting hearings and reviewing one million public comments in developing the Bristol Bay Watershed Assessment,” said the agency statement.

“That process included two independent peer reviews and a robust public outreach process in which Pebble Partnership readily participated,” it said. “No process could have been more transparent and inclusive of all views, including for proponents of the Pebble Mine.” [E&E News, 5/21/15]

EPA Assessment Found Mine Would Significantly Impact Salmon And Ecological Resources. In January 2014, the EPA released its final Bristol Bay assessment, titled, “An Assessment of Potential Mining Impacts on Salmon Ecosystems of Bristol Bay, Alaska.” The report concluded that “large-scale mining poses risks to salmon and the tribal communities that have depended on them for thousands of years.” The EPA highlighted its findings:

Depending on the size of the mine, EPA estimates 24 to 94 miles of salmon-supporting streams and 1,300 to 5,350 acres of wetlands, ponds, and lakes would be destroyed.

Extensive quantities of mine waste, leachates, and wastewater would have to be collected, stored, treated and managed during mining and long after mining concludes ... Under routine operations, EPA estimates adverse direct and indirect effects on fish in 13 to 51 miles of streams.

Short and long-term water collection and treatment failures are possible. Depending on the size of the mine, EPA estimates adverse direct and indirect effects on fish in 48 to 62 miles of streams under a wastewater treatment failure scenario.

Consistent with the recent record of petroleum pipelines and of similar mines operating in North and South America, pipeline failures along the transportation corridor could release toxic copper concentrate or diesel fuel into salmon-supporting streams or wetlands.

Failure of a tailings storage facility dam that released only a partial volume of the stored tailings would result in catastrophic effects on fishery resources. [EPA, An Assessment of Potential Mining Impacts on Salmon Ecosystems of Bristol Bay, Alaska, 2014; EPA.gov, 1/15/14]

EPA Assessment Is Based on Northern Dynasty Minerals' Preliminary Plan. The EPA also noted that its Bristol Bay assessment was based on a preliminary assessment carried out by Northern Dynasty Minerals Ltd., the company invested in the mine:

The [EPA] reviewed information about the copper deposit at the Pebble site and used data submitted by Northern Dynasty Minerals Ltd. to the U.S. Securities and Exchange Commission, including the document titled “Preliminary Assessment of the Pebble Project, Southwest, Alaska,” which provides detailed descriptions of three mine development cases representing 25, 45 and 78 years of open pit mining. The 45-year development scenario was presented as the reference case in the Northern Dynasty report. [EPA.gov, 1/15/14]

Pebble Mine Would Require Huge Open Pit, Generate Up To 10 Billion Tons Of Waste. The Center for American Progress reported:

Because the deposit's ore is so diffuse, the mine would require not only an open pit thousands of feet deep and two miles to three miles wide, but also tailings reservoirs to hold toxic mine waste that could cover more than 7,600 acres, or 12 square miles, and would remain in perpetuity.

[...]

While the Pebble Project would be located on lands owned by the state of Alaska, open-pit mining requires the discharge of huge amounts of polluted water, extensive dredging, and the filling of waterways with mine waste.

[...]

[T]he Pebble Project could generate up to 10 billion tons of waste, all of which would need to be stored on-site in vast rock piles and tailings reservoirs. These reservoirs, which will hold toxic waste, including the chemicals used to leach out the precious metals from the mined ore, require the construction of large dams and impoundments and then the filling in of previously untouched valleys. (see graphic below) Depending on the actual size of the open-pit mine, the Pebble Project will likely require multiple tailings-storage reservoirs, each with multiple dams and earthen embankments. [Center for American Progress, 6/27/13]