Every summer, nearly half the world’s spawning sockeye salmon converge on southwest Alaska’s Bristol Bay and forge their way inland up great rivers, their silver bodies turning red and hump-backed. Local Native communities — some of the last surviving salmon-based cultures — haul in nets heavy with the fish, an activity, says Curyung Tribal Administrator Dorothy B. Larson, that’s “engrained in our DNA.”
From the 1970s until 2005, Alaska managed most of the Bristol Bay watershed as key habitat for salmon. Then, likely under industry pressure, it rolled back those protections. In 2007, a consortium of Canadian and British mining companies called the Pebble Partnership formed, with plans to mine copper in the headwaters of the Kvichak and Nushagak rivers. Members of local tribes, fearing water pollution from the Pebble Mine — which could become one of North America’s largest — asked the Environmental Protection Agency to intervene in 2010. “In some areas, we probably could work mining and fish together,” says Larson. “But not at the headwaters of two of the largest-producing salmon rivers in the world.” Fishermen and big green groups such as the Natural Resource Defense Council joined the fight. And in April, the EPA released a second draft of a study expressing serious concerns about mining’s impact on salmon, raising hopes that the agency might invoke its controversial, seldom-used veto power to halt the project in its tracks.
Under Section 404(c) of the Clean Water Act, the EPA has the power to override infrastructure projects approved by the often pro-development Army Corps of Engineers when fish, wildlife, drinking water or recreation are threatened. It does this by vetoing the permits for “dredged or fill material” required to excavate mines and construct tailings dams. Environmental groups have often asked the EPA to use 404(c), but it has done so only 13 times, mostly in the Eastern and Southern U.S.
None of those projects posed anywhere near the threat that the Pebble Mine does, says Craig Johnston, a professor at Oregon’s Lewis and Clark Law School. (He worked for the EPA in 1986 on the veto of a Massachusetts shopping mall, which would have destroyed what the agency itself called an “ordinary swamp.”) And with Pebble Mine’s metals valued at more than $48 billion, the project also dwarfs others in terms of potential profits.
EPA’s April report found that a hypothetical Pebble Mine could consume several miles of spawning streams and contaminate the watershed with acid mine drainage and copper, which is toxic to salmonids. Leaks in the slurry pipeline transporting the copper to an ocean port would release high concentrations of toxic metals. And a failure of the tailings dams would devastate salmon habitat for decades. To protect salmon and streams, the draft states, mining wastes “would require management for centuries or even perpetuity.”
Pebble, which intends to monitor the mine site “for a minimum of 30 years” after mining ceases, according to its website, is critical of the EPA for overlooking potential mitigation measures like constructing new salmon habitat, and for speculating on its plans before it even files for permits (which it may do this year), a concern shared by Alaska Gov. Sean Parnell, the state’s Department of Natural Resources and some local Native communities supportive of the mine for the jobs and tax revenue it would bring.
The EPA has vetoed high-profile projects in the past: In 1990, for example, then-Administrator William Reilly angered Colorado’s congressmen by nixing Denver Water’s plans to construct Two Forks Reservoir, which would have destroyed a prime trout stream. And in 2011, then-EPA head Lisa Jackson revoked a permit for a mountain-top-removal coal mine in West Virginia. The mining company appealed, but in April, the Supreme Court upheld the EPA’s authority to use 404(c) “whenever” it wants. The Wall Street Journal, echoing outcry from business interests, editorialized that the agency’s move was “about killing coal as part of the Obama Administration’s climate agenda” and an effort to “shut down industries on ideological grounds,” heightening the political risk of vetoing Pebble.
“EPA is under attack for almost everything it’s doing,” says Pat Parenteau, a professor at Vermont Law School who worked for the agency during three 404(c) cases. “Any action that EPA takes has to be viewed in the larger political context of, ‘How many of these battles can the agency fight?’ “
The EPA has tried to defuse the pressure by denying that the watershed study portends a veto. But Phil North, who worked as an EPA ecologist on the study before retiring in April, says there is “a lot of sympathy” within the agency for the tribes’ concerns. He believes the science of the watershed study is clear: Pebble Mine is incompatible with subsistence life based around Bristol Bay’s abundant salmon.
“I’ve worked on every major mine in Alaska in one capacity or another,” he says. “This was the first one that I ever saw, that as I worked on it, I thought, ‘You know, maybe this one is not such a good idea.’ “
This article appeared in the print edition of the magazine with the headline Between a Pebble and a hard place.
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