It’s a sure sign of desperation when the CEO of the consortium of foreign mining companies that want to build one of the largest open pit mines in North America claims to be defending the National Environmental Policy Act (“NEPA”) from “attack.”
According to the Pebble Partnership’s John Shively, environmental groups and “politically motivated groups” are running a “campaign to subvert and evade NEPA” by mobilizing in support of EPA’s review of the proposed Pebble Mine – a reckless scheme to build a massive open pit mine in the headwaters of the world’s greatest wild salmon fishery in Bristol Bay, Alaska.
With friends like John Shively, NEPA doesn’t need enemies. In fact, by arguing he has a right to NEPA review before his project can be rejected, he turns NEPA on its head.
First, NEPA has been and remains a critically important environmental statute – a federal commitment to environmental quality that, according to President Obama, is the “cornerstone of our nation’s modern environmental protections.”
It was enacted in 1969 precisely to ensure that projects like the one pursued by Shively cannot be approved without environmental review.
NEPA provides no support for his self-serving view that a NEPA process is required before his massive mining project can be rejected by EPA or any other federal agency with lawful jurisdiction.
NEPA was never intended to burden EPA actions necessary to prevent large-scale mining from contaminating a resource like the incomparable Bristol Bay wild salmon fishery.
NEPA was never intended to burden federal action to protect our natural resources from degradation and destruction.
Second, NEPA is not our only environmental statute, and EPA unquestionably has jurisdiction to act under a wide range of others, including the federal Clean Water Act.
Of particular concern to Shively and his Pebble Mine project, section 404(c) of the Clean Water Act explicitly authorizes EPA to prohibit or restrict a proposed activity where it is likely to cause “unacceptable adverse effects” on local fisheries, waters, wildlife, and recreational resources.
Here, the EPA’s own multi-year, comprehensive scientific risk assessment has documented that adverse effects – even catastrophic effects -- are foreseeable if large-scale mining is allowed in the sensitive, hydrologically-complex watershed that feeds Bristol Bay.
There is nothing in NEPA that is even arguably inconsistent with this Clean Water Act authority.
To be sure, EPA has rarely used section 404(c). Indeed, in the 40-year history of the Clean Water Act, the agency has taken action based on it only a dozen times. EPA has viewed it as extraordinary -- applicable only in the most compelling circumstances, where the risk of harm is significant and beyond reasonable doubt. And there is every reason to expect the agency to apply a similarly strict standard today.
Shively’s histrionic claim that “tens of thousands of other projects” will be put at risk by EPA action on Pebble Mine is, once again, self-serving fiction.
If there is a clearer case than this one for use of the agency’s authority to protect the resources enumerated by Congress – including, most particularly, local fisheries – it has never been presented.
The sheer size of the proposed Pebble Mine (and the long line of mining claims waiting behind it), and the undeniable importance of the resources at risk if mining is allowed, put this request in a class by itself.
The interests of no one – not even the mining companies’ economic interest in regulatory certainty -- will be served by allowing this threat to hang over the region and its people for decades.
It’s no mystery why more than 80 percent of the people who live in the Bristol Bay region oppose the Pebble Mine. EPA action to protect Bristol Bay and all of the communities that depend on it is needed now.
With all due respect to Mr. Shively, NEPA is doing just fine without his help.
Joel Reynolds is Western director and senior attorney at the Natural Resources Defense Council.