Northern Dynasty files two separate actions to vacate EPA’s Veto of Pebble Mine

March 15, 2024

Northern Dynasty Minerals Ltd. announced that it is filing two separate actions in the federal courts challenging the federal government’s actions to prevent the company from building a mine at the Pebble Project.

The main focus of the legal action, according to a press release from Northern Dynasty seeks to vacate the U.S. Environmental Protection Agency’s (EPA) veto of a development at the Pebble Project near Alaska’s Bristol Bay Region.

“We are confident that the court will vacate the EPA veto and allow permitting of the Pebble project to resume because, as we have previously stated, the veto violated the law and was arbitrary and capricious,” Northern Dynasty wrote in its release.

Among other points, the complaint alleges the veto from the EPA was issued in violation of various federal statutes regarding Alaska’s statehood rights and a land exchange approved by Congress. The company contends that the veto was based on an overly broad legal interpretation of EPA’s jurisdiction which has since been over-ruled by the U.S. Supreme Court and the veto’s geographic scope exceeds that allowed by the statute. Further, Northern Dynasty writes that the veto was based on information previously developed by EPA in an illegal preemptive veto process that was designed to reach a predetermined result and the factual basis stated to support the veto is directly contradicted by the July 2020 Environmental Impact Statement published by the United States Army Corps of Engineers (USACE), which is an important part of the administrative record. The EPA has not demonstrated that either the development of the Pebble deposit will have unacceptable adverse effects under Section 404(c), or that there are any impacts to Bristol Bay fisheries that would justify the extreme measures in the final determination (veto).

“Whatever authority the EPA may have under section 404(c), the general provision in the Clean Water Act cannot authorize the EPA to take action to block the specific economic activity that was Congress’s express purpose for granting these lands to the State of Alaska under the Cook Inlet Land Exchange,” Ron Thiessen, Northern Dynasty President and CEO, stated. “It cannot authorize the EPA to override the State’s regulatory preferences for the lands, or the State’s preference to allow modest use of some streams and wetlands in the vicinity of the Deposit to facilitate the extraction of the valuable critical minerals. This is just another example of gross EPA overreach of the powers granted to it by Congress.”

An action is also being filed in the United States Court of Federal Claims in Washington, DC, claiming that the actions by the EPA constitute an unconstitutional “taking” of Northern Dynasty’s and the Pebble Partnership’s property.

“We plan to ask the court to defer considering this action until the EPA veto case, discussed above, has been finally resolved. Our permitting strategy is focused entirely on winning the EPA veto case and permitting the Pebble project. We have filed a takings case against the federal government to preserve our ability to seek compensation for a violation of our rights in line with the protections under the Fifth Amendment,” the company wrote. “There are procedural rules regarding takings cases that made it necessary to get this claim on file at this time. We note, however, that the damages for “taking” the world’s largest undeveloped copper deposit could be very substantial.”

“Our priority is to advance the District Federal Court Complaint, because overturning the illegal veto removes a major impediment from the path of getting the permit to build the proposed mine,” said Thiessen. “The filing of the takings complaint puts the U.S. Government on notice that we will be seeking very substantial compensation if they continue to illegally block the lawful permitting process. It is basically an insurance policy, ensuring that this case is available to us when, or if, we decide to pursue it further.”

The state of Alaska will also be filing similar actions in Federal District Court in Alaska and the United States Court of Federal Claims in Washington, DC.



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