Stopping Pebble Mine: A Test of Our Democracy

In a thriving democracy, facts matter. Science is essential. And the will of the people is fundamental – entitled to respect, not doublespeak from distant corporate interests focused first and foremost on financial gain.

This constitutional framework has always seemed foreign to Northern Dynasty Minerals (“Northern Dynasty” or “Pebble”), the small Canadian owner of the widely condemned Pebble Mine proposed for the headwaters of the world’s greatest wild salmon fishery.  

Consider its history:

In 2005, Northern Dynasty acquired rights over 100 percent of the Pebble Mine deposit.  Two years later, it formed a 50-50 partnership with Anglo American—called the Pebble Partnership—and, beginning in 2006, Mitsubishi Corporation and Rio Tinto became major shareholders. By early February 2011, Northern Dynasty’s share price exceeded $21 a share.

In a mine-friendly state like Alaska, what could go wrong?

1. It’s About the Salmon

Over the past decade the Pebble project has become one of the most unpopular mine development projects anywhere, both inside and outside of Alaska.  Most important, the people of the Bristol Bay region are almost unanimously opposed—consistently 80 percent or more.  That opposition has never wavered, and the reason is simple:  The project’s location and unprecedented scale in the headwaters of Bristol Bay put the region’s world class wild salmon fishery and their way of life at risk.

As passionately expressed in 2014 by Alannah Hurley, Executive Director of United Tribes of Bristol Bay, representing 15 Bristol Bay Tribes and 80 percent of the region’s residents:

I am tired of being held hostage by the cloud that this type of development has settled over our region.  I am tired of watching my friends and family wonder: If this happens, how will we feed our children? How will our culture survive? The people of Bristol Bay are sick and tired of the uncertain fate of our watershed that has fed the hearts and souls of our people for thousands of years. 

Bristol Bay's opposition has generated global support, both in the lower 48 states and around the world.  Over the years, that support has only grown, and today the Pebble Mine is an international pariah.

In a democracy, this kind of consensus—this broad diversity of unyielding opposition—should mean something.  And to each of Northern Dynasty’s major mining partners it did:  Mitsubishi sold out in 2011. Anglo American walked away in 2013, forfeiting a $600 million investment.  Rio Tinto followed in 2014, donating its shares to two Alaskan non-profits.  In 2018, after investing $37.5 million just months before, First Quantum Minerals discontinued its interest after a storm of focused opposition.

But Northern Dynasty chose to dig in, treating Alaskans “like rubes, their questions dismissed or answered bluntly.”  Since 2014 the company has been on its own—the 100 percent owner and sole remaining partner in the now-depleted Pebble Partnership—and its isolation continues to deepen.    

2. It’s About Science, Not Legal Obstruction

Northern Dynasty banked on a permit approval by the U.S. Army Corps of Engineers (“Army Corps”) despite compelling scientific evidence of unacceptable risk.  Its plan, however, was jeopardized by the independent regulatory authority delegated by Congress to the U.S. Environmental Protection Agency (“EPA”) under section 404(c) of the Clean Water Act. 

This administrative authority—independent of the Army Corps’ federal permitting responsibility—has been rarely invoked in the 50-year history of the Act.  When EPA initiated a 404(c) process for Bristol Bay in 2011, it sent an unmistakable signal that this project is uniquely destructive of protected water resources.  Following a three year, twice-peer reviewed scientific risk assessment process—the “Bristol Bay Watershed Assessment”—EPA concluded that the Pebble Mine poses a “catastrophic” risk, and in 2014 the agency proposed significant restrictions to prevent the massive project and protect the Bristol Bay watershed, its fishery, and its waters.  

In a democracy, good science informs good policy—always.  But Northern Dynasty opposed this science-based process from its inception, doing whatever it could to impugn the agency’s credibility and the findings of its comprehensive Watershed Assessment.  When the EPA Inspector General investigation that the company had itself requested found no evidence of bias or collusion, it promptly attacked the investigation.  It then filed no less than three lawsuits against EPA to block completion of the process. 

3. It’s About Facts, Not Politics

When Donald Trump was elected President in 2016, Northern Dynasty moved quickly to take advantage.  As soon as Trump’s newly appointed EPA Administrator Scott Pruitt took over, Pebble’s CEO met with him behind closed doors in early May 2017.  In just over an hour, and without even consulting his technical staff, Pruitt reached an agreement to settle the company’s litigation against EPA by suspending the protections proposed by the agency under section 404(c).

Northern Dynasty, through the Pebble Partnership, then filed a permit application with the U.S. Army Corps of Engineers in December 2017, proposing an accelerated timeline for approval before the end of the Trump Administration’s first term.  To meet that fast-tracked schedule, the company opposed all requests from the people of Bristol Bay and others for adequate time to review environmental documents, to fill scientific data gaps, and to meaningfully participate in the permitting process. 

Pebble called these requests “a red herring,” and it dismissed the Interior Department’s description of the company’s draft environmental impact statement as “so deficient that it precludes meaningful analysis.”  Even the Tribes’ requests for more time during the height of the COVID 19 pandemic were rejected out of hand.  Apparently convinced the political fix was in for approval of its permit application, Northern Dynasty drove the process relentlessly to its conclusion.  

But a democracy dies when political influence is more important than the facts.

In this case, while the Army Corps of Engineers acquiesced to Pebble’s accelerated schedule, it stunned the company in November 2020 by denying the application.  Based on the factual record, the Army Corps concluded that “the applicant’s plan for the discharge of fill material does not comply with Clean Water Act guidelines and . . . the proposed project is contrary to the public interest.”

Entirely true to form, Northern Dynasty CEO Ronald Thiessen cried foul, vowed to appeal, and the company did so in January 2021.  It appealed because Northern Dynasty has no other assets than the Pebble project and nowhere else to go but dissolution.  But in addition to the appeal, as Pebble told investors earlier this month, “legal options [are] also being considered.”

As surely as the sun will rise, the company will continue to file legal challenges and dismiss the concerns of Alaskans as “absurd claims and fears” or “hysteria.”  It will continue to ignore the compelling scientific evidence of risk that its project poses to the region and its resources.  And it will continue to challenge the independent EPA process—requested by Bristol Bay Tribes—to secure lasting protections for the region.

As 2022 begins, the prospects for this most embattled mining project have never been worse:

• A year after the denial of its permit application, it faces a renewed EPA process under section 404(c)—the very administrative process initiated by the Obama Administration in 2011, withdrawn in 2019 by the Trump Administration, and reinstated last September by the Biden Administration. 
• Led by United Tribes of Bristol Bay, organizations representing tens of millions of members and supporters from Alaska and around the country have weighed in to support the agency’s process.  In 2021, these have included, for example, commercial fishing industry associations and salmon processors, outdoor recreation businesses and hundreds of thousands of American hunters, anglers, and outdoor enthusiasts, investors and fund managers representing $105 billion in assets under management, and 53 local, state, national, and international conservation, environmental, tribal, and business organizations.
• Both Alaskan Senators have repeatedly stated their opposition to the Pebble Mine, and Senator Murkowski has committed to introduce legislation to secure permanent protections for the watershed that feeds Bristol Bay.
• President Biden and his EPA leadership are on record opposing the Pebble Mine and supporting long-term protections against large-scale mining in the region.
• The Conservation Fund has reached an agreement with the Pedro Bay Corporation for purchase of a conservation easement over 40,000 acres, including land identified by Pebble as necessary for its transportation and infrastructure corridor to the mine site.  December 2022 is the deadline for funding of the agreement.
• Northern Dynasty has been abandoned not only by its mining partners and mining company investors but by former institutional shareholders and financial partners like Morgan Stanley, Cantor Fitzgerald, and BlackRock. The company spent no money on lobbyists in Washington D.C. during the last six months of 2021—down from $1.5 million spent in both 2019 and 2020. Efforts to find a new mining partner have been unsuccessful, and last month the company’s share price dipped below $0.30 a share.  With that, its market cap—almost $2 billion in early 2011—is less than $200 million today.

The battle for Bristol Bay has always been bipartisan, and it remains so today. Northern Dynasty’s project has been rejected by the Obama, Trump, and Biden Administrations and by EPA Administrators from the Presidencies of Nixon, Reagan, George H.W. Bush, and George W. Bush.  It has always been “the wrong mine in the wrong place,” opposed by Alaskans not for reasons of politics but because it would introduce into the headwaters of Bristol Bay billions of tons of mining waste, laced with toxic chemicals that put at risk the economic and spiritual engine at the heart of the region’s way of life.

Democracy may be fragile, and it may be inefficient.  But, so far, it has withstood the threat to its integrity posed by the Pebble Mine.  Stopping this project once and for all—defending Bristol Bay—is a test we cannot afford to fail.

It’s time to stop the Pebble Mine—at long last. Take action now.