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Governor Dunleavy Poised to Sue EPA over Bristol Bay Veto

Dec 2, 2022

In comments submitted earlier this year, Governor Mike Dunleavy called on EPA Region 10 to withdraw its proposed action to prohibit the development of the Pebble deposit in the Bristol Bay area.

Instead, Region 10 has recommended that EPA finalize it; EPA now has 60 days to make a final decision.

If finalized, this action sets a dangerous precedent.  It vetoes a permit that has not been issued and imposes a blanket prohibition on development over 309 square miles of Alaska-owned land.  Alarmingly, it lays the foundation to stop any development project, mining or nonmining, in any area of Alaska with wetlands and fish-bearing streams.

“The State of Alaska has the duty, under our constitution, to develop its resources to the maximum in order to provide for itself and its people, so it’s important that any and all opportunities be explored in furtherance of this idea,” said Governor Dunleavy. “The recent decision on the Pebble mine, which is solely located on State land, is the wrong decision. The State of Alaska does resource development better than any other place on the planet and I challenge others to prove that wrong. Our opportunities to show the world a better way to develop our resources should not be unfairly pre-empted by the Biden administration under a solely political act. This sets a very troubling precedent for the State and the country. If this goes unchallenged, this issue will become precedent-setting, potentially for other states as well.”

“This is an incredible power for a federal agency—staffed by unelected officials, unaccountable to Alaskans—to have,” said Jason Brune, Commissioner of the Alaska Department of Environmental Conservation.

The Governor noted several flaws in the veto’s supporting documents. One is the veto’s prematurity: project plans are still working through the established permitting process, which the Army Corps of Engineers oversee. At this juncture, Alaska’s State agencies—the Alaska Department of Fish and Game, the Alaska Department of Environmental Conservation, and the Alaska Department of Natural Resources—have not yet weighed in; through the State permitting process, the State’s 401 certification process, or through State input as a landowner.

The veto disregards the Alaska Statehood Act, violates the Clean Water Act, and departs from basic scientific methodology. Of particular concern is EPA’s failure to demonstrate why the Army Corps of Engineers was wrong when it reviewed the same scientific data but arrived at the opposite conclusion—that the proposed mine plan “would not be expected to have a measurable effect on fish numbers or result in long-term changes to the health of the commercial fisheries in Bristol Bay.”

The State of Alaska was joined by Arkansas, Idaho, Indiana, Kansas, Kentucky, Louisiana, Montana, Nebraska, South Carolina, Texas, Utah, West Virginia, and Wyoming in a letter of opposition filed concurrently with the Governor’s. “Decisions like these,” the States emphasized, “throw a wild card into the entire 404 permitting process.”

Additionally, united by a desire for greater predictability in the 404 permitting process, the Western States Water Council, representing 18 states and accountable to the Western Governors’ Association, passed a resolution urging EPA to adhere to established procedure, meaningfully consult with affected States, and adequately document its rationale before exercising the 404(c) veto power.

Calling EPA’s decision “legally indefensible,” Attorney General Treg Taylor indicated that his office would defend Alaska’s rights in court should EPA proceed with finalization.

“Rest assured, my Administration will stand up for the rights of Alaskans, Alaska property owners, and Alaska’s future,” said Governor Dunleavy.

The full text of Governor Dunleavy’s Comments and the Multi-State Opposition Letter is available on the Department of Environmental Conservation’s webpage.