EPA Scoffs at Pebble Mine Suit in 9th Circuit

(CN) - Federal regulators urged the 9th Circuit to throw out an appeal from a company whose pebble-mining project in Alaska it blocked.

Anchorage-based Pebble LP filed suit after receiving a letter in February 2014 that announced the Environmental Protection Agency's plans to block its bid for a permit to mine a pebble deposit in the Bristol Bay watershed area.

Section 404 of the Clean Water Act gives the secretary of the Army the sole authority to issue the 404 permits that are mandatory for mine operations, but the EPA has veto power over specified disposal sites if the agency determines that proposed discharges will have an adverse effect.

Noting that it had yet to even apply for the permit, Pebble complained that the EPA overrode a nonexistent permit before the secretary of the Army had conducted a review of the project.

Pebble disputes that the project will cause harm, noting that the pebble-deposit area is isolated and sparsely populated. The nearest communities of Iliamna, Newhalen and Nondalton, and the vast Lake and Peninsula Borough, have a mere population of 1,631, according to the 2010 census. It is the second lowest population density of any county-equivalent in the United States.

U.S. District Judge Russell Holland dismissed the complaint for lack of jurisdiction, however, because he said that the letter from EPA Region 10 Administrator Dennis McLerran did not qualify as the final agency action Pebble needs to obtain judicial review.

"The February 28, 2014 letter does not represent the consummation of the agency's decisionmaking process, but rather the commencement of the agency's decisionmaking process," Judge Holland wrote.

Pebble's attorney pushed for a reversal from the 9th Circuit at a hearing in Anchorage on Thursday.

"It is true that other activities will follow from this, but that does not prevent this decision from being a final one," attorney Richard Schwartz said.

To show that the 404 veto proceeding is a final agency action, Schwartz pointed out the lack of any mention in the EPA's briefs that it plans to reconsider the decision.

Judge Jay Bybee was skeptical.

"Do you have any decision from any court ever holding that a decision to exercise jurisdiction of a case is a final decision?" Bybee asked.

Though Schwartz pointed to Bell Atl. Corp. v. Twombly and Minard Run Oil Co. v. U.S. Forest Serv., EPA counsel David Shilton reminded judges that Schwartz's sole basis for finality claim is a letter.

"The February 2014 letter from EPA does not make any determination on the question that Pebble wants reviewed," Shilton said.

All Pebble has is a hypothetical consequence, the attorney added, exclaiming, "There is no permit application at all."

Schwartz called the EPA's actions "the ultimate straw man."

"They constructed it so that they can knock it down," he said. "And when they did that, they changed what should be the nature of veto proceeding."

The proposed mine project, which sits on state-controlled land, holds what is estimated to be the world's largest undeveloped deposit of copper ore.

If approved, it would create 15,000 jobs, contribute $64 billion to U.S. gross domestic product and generate approximately $18 billion in federal, state and local tax revenues, the complaint claims.

Judges William Canby, Jr. and Paul Watford joined Bybee on the panel.

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