On November 25, 2014, a federal judge granted a motion for preliminary injunction, and ordered US EPA to stop all work pertaining to its investigation of and proposed plan to restrict discharges from the prospective Pebble Mine project near Bristol Bay in Alaska. The plaintiff, Pebble Partnership, contended that US EPA failed to comply with the requirements of the Federal Advisory Committee Act (FACA) by colluding with environmental activists to reach a predetermined result that effectively vetoed the project without scientific inquiry.
The basis for the suit was US EPA’s “Proposed Determination” under the Clean Water Act (CWA) for the Pebble Deposit Area which was issued in July 2014 and proposed restrictions on the discharge of dredged or fill material into area waterways to protect the “unparalleled ecological value” of the Bristol Bay watershed. The Proposed Determination was based on US EPA’s authority under CWA Section 404, which permits US EPA to restrict or prohibit certain mining activities if it determines a project would have unacceptable adverse effects on fishery areas. However, in this case, no project application had even yet been submitted by Plaintiff.
In response to US EPA’s Proposed Determination, the Pebble Partnership filed suit along with a Motion for Preliminary Injunction, arguing that US EPA relied on a de facto advisory committee consisting of activists groups to develop its Proposed Determination in violation of the FACA without making the committee public. Among other things, FACA requires that advisory committees be established as a matter of formal record with timely notice published in the Federal Register and advisory committee meetings open to the public.
Under the court’s order, US EPA is enjoined from “taking any action in furtherance of a decision to veto a possible Pebble (Bristol Bay area) mine project” and from “issu[ing] any recommendation on [the] pending proposed determination regarding the Pebble Mine project until after the court has ruled on the merits of plaintiff’s complaint.” Indeed, the court clarified in a December 4, 2014 order that US EPA must stop all work, even internal activities, related to the Pebble Mine determination.
In light of the restriction on any work by US EPA, the injunction may delay the Agency’s ultimate decision to recommend or withdraw the Proposed Determination, which was planned for no later than February 4, 2015. However, the court explained that “[a]t this preliminary injunction stage of the case, the court perceives there will only be a brief delay, and that no harm to defendants will flow from the granting of a preliminary injunction. Plaintiff, on the other hand, is unlikely to have any remedy if its FACA claims are not resolved prior to a final Section 404(c) decision by defendants.”
While the merits of this case (i.e., determinations on the alleged FACA violations) will need to proceed, this case, nonetheless, raises significant issues regarding the role and influence of environmental activists in US EPA decisions. The Court’s determination of these issues will be one to watch and we will report back on any such developments.