US District Court Judge Sharon Gleason says she expects to hand down a decision by month’s end on whether a lawsuit against the Environmental Protection Agency (EPA) related to development of the proposed Pebble mine may move forward.
Gleason heard arguments in Anchorage, Alaska, on Monday, March 2, over the EPA’s decision to withdraw its 2014 proposed determination, which would have blocked development of the mine adjacent to the Bristol Bay watershed in Southwest Alaska. The EPA, which is represented by the Department of Justice (DOJ), is seeking to have the case dismissed.
DOJ environmental defense attorney Mark Nitczynski argued that EPA’s decision to withdraw that proposed determination is a decision “not to enforce,” and is presumptively unreviewable. If this case is not dismissed it would then subject to a review every EPA decision regarding its veto authority in any U.S. Army Corps of Engineers permit, he said.
Plaintiffs contend that the EPA’s move to withdraw proposed Clean Water Act protections was arbitrary and unlawful and runs counter to the scientific and public record.
Those protections were first requested back in 2010 by six Bristol Bay tribes, and supported by commercial and sport fishing groups, among them the Bristol Bay Regional Seafood Development Association (BBRSDA), which represents the drift gillnet fleet in Bristol Bay.
“Although we are now waiting for the judge’s ruling in this case, our primary goal is unchanged: protecting and promoting the Bristol Bay fishery,” said Andy Wink, executive director of the BBRSDA. “The science still supports 404 protections in Bristol Bay and we will continue working to secure them.”
Wink’s reference was to section 404 (c) of the Clean Water Act, which authorizes the EPA to prohibit, restrict or deny the discharge of dredged or fill material at defined sites in waters of the United States, including wetlands, whenever it determines that use of such sites for disposal would have an unacceptable adverse impact.
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