Supreme Court May Soon Consider EPA’s Veto of Huge Alaska Mine

Alaska claims the federal government illegally interfered in state affairs when it rejected a large economic development.
Supreme Court May Soon Consider EPA’s Veto of Huge Alaska Mine
Alaska Gov. Mike Dunleavy speaks at a press conference in Anchorage, Alaska, on Aug. 13, 2019. (Mark Thiessen/AP Photo)
Matthew Vadum

The Supreme Court may soon consider whether to hear Alaska’s appeal against the U.S. Environmental Protection Agency’s (EPA) decision to veto the proposed $400 billion Pebble Mine project in the southwestern part of the state.

The project site on state-owned land in the Bristol Bay area is reportedly home to the planet’s second-largest untapped deposit of copper. Demand for copper is expected to more than double by 2050. Copper is essential to industries that make products favored by environmentalists, such as electric vehicles and wind turbines. Gold, silver, molybdenum, and rhenium have also been identified at the site.

Pebble Limited, which wants to develop the site, stated that it'll generate as many as 2,000 jobs. Local fisheries, which environmental groups claim will be damaged by the project, generate $2 billion annually and support 15,000 jobs.

The court may take up the case next month.

Alaska’s move comes after the nation’s highest court limited the EPA’s powers in recent years.

In May, the court curbed the agency’s power to regulate wetlands in Sackett v. EPA. In June 2022, the court found in West Virginia v. EPA that the federal Clean Air Act doesn’t give the EPA widespread authority to regulate carbon dioxide emissions.

The EPA skipped the usual regulatory protocol and decided under Section 404(c) of the Clean Water Act to restrict the use of waters in the Bristol Bay watershed as disposal sites for discharges of dredged or fill material associated with developing the Pebble project site or any other similar project on state-owned lands nearby. The EPA’s veto of the project included future mines in a 309-square-mile area. The U.S. Army Corps of Engineers turned down the mine application in 2020 but had agreed to review its decision.

Despite the access to environmentalist-favored copper promised by the project, environmentalists still claimed that the project would harm fisheries. The Army Corps of Engineers issued a Final Environmental Impact Statement in July 2020 stating that the mine wouldn’t adversely affect the Bristol Bay fishery.

Earlier this year, Alaska Gov. Mike Dunleavy, a Republican, said the EPA was wrong to intervene in the state’s affairs.

“EPA’s veto sets a dangerous precedent,” the governor said in a statement.

“Alarmingly, it lays the foundation to stop any development project, mining or non-mining, in any area of Alaska with wetlands and fish-bearing streams. My administration will stand up for the rights of Alaskans, Alaska property owners, and Alaska’s future.

“The State of Alaska has a responsibility to develop its resources to provide for itself and its people. Alaska does resource development better than any other place on the planet, and our opportunities to show the world a better way to extract our resources should not be unfairly preempted by the federal government.”

The Biden administration countered in a brief that the Bristol Bay watershed “is an area of unparalleled ecological value, boasting salmon diversity and productivity unrivaled anywhere in North America.”

“[The watershed is] also the location of a large copper-bearing ore body known as the Pebble deposit,“ Solicitor General Elizabeth Prelogar wrote. ”After determining that discharges of dredged or fill material into waters of the United States associated with developing the Pebble deposit would have ‘unacceptable adverse effect[s]’ on fishery areas within the Bristol Bay watershed, the United States Environmental Protection Agency ... exercised its authority under Section 404(c) of the Clean Water Act ... to prohibit and restrict such discharges.”

The Supreme Court should refuse to accept the case, she wrote.

“Alaska in essence seeks judicial review of agency action or compensation in the alternative, as any private litigant might do,“ Ms. Prelogar wrote. ”Those claims do not rise to the level of ‘seriousness and dignity’ that this Court has required for the exercise of its non-exclusive original jurisdiction over a suit against the federal government.

“Moreover, Congress has provided Alaska with other federal forums in which it may bring its claims. The motion for leave to file a bill of complaint should be denied.”

Although almost all cases that come to the Supreme Court are appeals, occasionally the court will hear a case under its original jurisdiction authority that has never been heard by a court. Under the U.S. Constitution and federal law, the Supreme Court will hear disputes affecting ambassadors, public ministers, and consuls and cases in which a U.S. state is a party. The court also can exercise jurisdiction in litigation between two or more states and in cases between the federal government and a state.

The Supreme Court isn’t required to take a case. In the case at hand, Alaska v. United States, Alaska filed a motion for leave to file a bill of complaint. If at least four of the nine justices vote to grant the motion, the case will move forward to the oral arguments stage.

In addition to the federal government, Alaska is suing Michael Regan in his official capacity as administrator of the EPA.

The Epoch Times reached out for comment to Alaska’s attorney, John Michael Connolly of Consovoy McCarthy in Arlington, Virginia, and DOJ officials but received none by press time.