More Proof on Pebble A new report takes apart the EPA’s veto of a mining project.
http://www.wsj.com/articles/more-proof-on-pebble-1444088118
It is by now beyond dispute that the Environmental Protection Agency went rogue when it halted Alaska’s proposed Pebble Mine project. And yet, there’s more.
The more comes via an independent report that criticizes the agency for its pre-emptive 2014 veto of Pebble, a proposal to create the country’s largest copper and gold mine in southwest Alaska. Under the Clean Water Act, the Army Corps of Engineers evaluates permit applications for new projects. The EPA has a secondary role of reviewing and potentially vetoing Corps approval. Here, the EPA issued a veto before either Pebble could file for permits or the Corps could take a look.
Pebble CEO Tom Collier didn’t take this lying down. He filed a lawsuit. Then he asked former Senator and Defense Secretary William Cohen to conduct an outside investigation. Mr. Cohen agreed, as he writes, “on conditions of independence. I would follow the facts wherever they may lead, and any conclusions would be mine alone.” His 346-page report, released to be Tuesday, is a straightforward yet withering takedown of EPA’s conduct.
Mr. Cohen allows that EPA has authority to issue a pre-emptive veto (a conclusion disputed by other legal scholars). He notes, however, that EPA had never done so in the water law’s 43-year history. His well-documented point is that EPA’s decision to ignore regular procedure led to basic flaws in science and procedure, making impossible a remotely “fair” evaluation.
EPA did a watershed assessment based on a hypothetical mine and used this to justify its veto. Mr. Cohen notes that EPA acknowledged “significant gaps in its assessment,” since it had no permit applications on which to base its fiction.
The Corps refused to participate in the EPA process (because no permits had been filed) as did the State of Alaska (on principle). As a result, writes Mr. Cohen, EPA was unable to take into account “meaningful participation by other state and federal government agencies, mitigation and controls as proposed by the developer, and an array of public interest factors.”
Mr. Cohen writes that everyone—pro and con—agrees this is a decision of “utmost importance” to Alaska, its economy, environment and people. “The stakes are far too high here to use the Bristol Bay watershed, and the massive mineral deposits that lie underneath State lands, as a laboratory to test an unprecedented decision-making process,” he writes.
Mr. Cohen says his review raised “serious concerns as to whether EPA orchestrated the process to reach a predetermined outcome; had inappropriately close relationships with anti-mine advocates; and was candid about its decisionmaking process.” He recounts the evidence that EPA decided on a veto as early as 2010, well in advance of Native tribes asking it to intervene.
He also provides new details about how tight EPA was with anti-mine advocates. Over 10 years EPA met with Pebble only about 30 times. In four years Trout Unlimited communicated or met with the agency 200 times to oppose Pebble. The legal counsel for opposed Native tribes communicated or visited with EPA at least 80 times over five years.
The agency, he writes, refused to let its employees speak to him and even had its lawyers tell Mr. Cohen to back off his review. “EPA exercises prodigious power, and rightly so; the protection of the environment is one of the federal government’s most important responsibilities. But government cannot retain respect and legitimacy if it fails to act with candor, or hides or withholds material information in its decision-making process or reaches a conclusion before conducting its assessment.”
Mr. Cohen deliberately withheld judgment on whether a mine should be built, or whether EPA broke the law. But his detailed report is a new reference tool for the EPA inspector general, and reason for Congress to hold hearings. More than anything, it’s an eye-opening tale of government abuse of power and disregard for the law. Again
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