The fate of the EPA veto blocking Pebble Mine is now in a federal judge's hands

A federal judge in Anchorage has refused to let the companies behind the Pebble Mine seal parts of the record in their own lawsuit against the Environmental Protection Agency.

U.S. District Judge Sharon Gleason denied the motion Aug. 5. It was the second such request Northern Dynasty Minerals and the Pebble Limited Partnership have filed and lost. An April 28 motion to seal portions of the joint appendix was denied as moot in May, after the second was already pending. The material at issue is the administrative record, the documents the agency relied on in making the decision now under challenge.

The larger question is undecided. Gleason heard argument on cross motions for summary judgment June 25, six weeks ago, and has not ruled. Her decision will determine whether the EPA's determination stands or goes back to the agency.

The authority at issue is rarely used. Section 404(c) of the Clean Water Act lets EPA override a dredge-and-fill permit issued by the Army Corps of Engineers, and the agency has invoked it roughly 13 times since the law passed in 1972, only about three of those since 1990. Most came under Republican administrations.

Its use at Pebble has reversed twice. EPA proposed a determination in 2014, before any permit application had been filed, a break from every prior use of the authority. The agency withdrew that proposal in 2019, its general counsel describing the move as eliminating "a preemptive veto of a hypothetical mine." The Army Corps denied Pebble's permit application in 2020 as contrary to the public interest. A federal court vacated the 2019 withdrawal in 2021, EPA restarted the process, and the final determination issued in January 2023.

That sequence complicates the label both sides use. The 2014 proposal was preemptive; by 2023 an application had been filed and denied.

EPA estimated the mine plan could destroy more than 2,100 acres of wetlands and nearly 100 miles of streams at the mine site alone. The determination limits mine waste disposal in the headwaters of Bristol Bay and has blocked permitting of the copper and gold deposit.

Northern Dynasty and the Pebble Limited Partnership sued in March 2024, joined by the State of Alaska and two Alaska Native village corporations, Iliamna Natives Ltd. and Alaska Peninsula Corp. They argue the agency exceeded its authority and that the action is unlawful and unconstitutional. The docket does not separately state the village corporations' reasons.

Intervenors defending it include Bristol Bay Native Corporation, Bristol Bay Native Association, United Tribes of Bristol Bay, Trout Unlimited and the Natural Resources Defense Council. BBNC says it opposes Pebble because of risks to fisheries and Native ways of life.

A corrected transcript of the June argument was entered on the docket Aug. 6.