Report Questions EPA Fairness in Evaluating Pebble Mining Impact on Vital Watershed

Former U.S. Defense Secretary and Sen. William S. Cohen has released the report of his independent review of the U.S. Environmental Protection Agency’s (EPA) decision-making process regarding potential mining in southwest Alaska’s Bristol Bay watershed. The review concludes that the EPA’s actions were not fair to all stakeholders.

The Cohen review was commissioned by the Pebble Partnership, which holds mineral claims to lands owned by the state of Alaska in the Bristol Bay watershed. “I undertook the review on conditions of independence. I would follow the facts wherever they may lead, and any conclusions would be mine alone. The Pebble Partnership had no rights to edit or censor my views,” Cohen said.

“The decision about whether to build a mine in this area, as well as the process used to make such a decision, is very important to Alaska’s environment, economy, people, fish and wildlife. It requires regulatory authority to be exercised in the fairest way possible. After a very thorough review, I do not believe the EPA used the fairest and most appropriate process,” Cohen said.

Cohen and his team reviewed thousands of documents from the EPA, other federal agencies, the state of Alaska, congressional committees, the Pebble Partnership and other sources. They also interviewed more than 60 people, including three former EPA administrators and several former senior EPA officials. The EPA declined Cohen’s request to make current personnel available for interviews.

At the heart of the review was the question of the appropriate process to make a determination to permit, limit or ban large-scale mine development in the Bristol Bay watershed. The EPA’s actions here departed from the normal permit evaluation process, Cohen states.

The normal method for determining whether a proposed mine will be allowed to proceed is through a permit application process led by the U.S. Army Corps of Engineers in compliance with guidelines co-developed with the EPA, the National Environment Policy Act (NEPA), and regulations developed by the Council on Environmental Quality. The NEPA process has been used for decades and is widely endorsed for its fairness by environmental groups, such as the Natural Resources Defense Council (NRDC).

Instead of using the NEPA process, EPA invoked Section 404(c) of the Clean Water Act before a permit application was filed to propose limits on development of a mine in the Bristol Bay watershed. This was the first time in the Clean Water Act’s 43-year history that the EPA exercised its authority without relying on a permit application. The EPA based its regulatory action on its assessment of the potential ecological effects of hypothetical mine scenarios it created. The EPA stated that “it has reason to believe” that a mine constructed according to its hypotheticals would have an unacceptable effect on the environment.

“The fairest and most appropriate process to evaluate possible development in the Pebble Deposit Area would use the established NEPA process to assess an actual mine permit application, rather than making an assessment based upon these hypothetical mining scenarios as the justification for imposing potentially prohibitive restrictions on future mines. I can find no valid reason why the NEPA process was not used,” Cohen said.

Cohen also comments that statements and actions of EPA personnel observed during his review “raise serious concerns as to whether EPA may have orchestrated the ecological assessment process to reach a predetermined result, had inappropriately close relationships with anti-mine advocates, and was not candid about its decision-making process.”

“Based on the concerns raised by these and other issues during the course of my review, I believe a closer look by those with subpoena power is fully warranted. Thus, I urge the inspector general and Congress to continue to explore these questions, which might further illuminate EPA’s motives and better determine whether EPA has met its core obligations of government service and accountability,” Cohen said.

Pebble Partnership CEO Tom Collier said, “We sought an independent, credible review by Secretary Cohen and his team, and they have expressed serious concerns about the EPA’s actions against Pebble. Most troubling to me are the serious concerns they express as to whether the EPA orchestrated the process to reach a predetermined outcome. Such bias is unacceptable, and I agree with Secretary Cohen’s call to action for congressional oversight committees to delve deeper into these issues.

“This report clearly makes the case about the criticality of a stable, objective, and transparent permitting process for evaluating resource projects such as Pebble. We did not ask the Cohen Group to evaluate a mine at Pebble, as our view remains that this should be handled via the permitting and NEPA review process. The report validates that the established regulatory and NEPA process is the fairest and most appropriate process for evaluating a complex issue such as ours.

“All we have ever asked for is the opportunity to have our project evaluated via the normal permitting and NEPA process. When an agency does not follow an established process, bias and mischief creep in and that is what we believe has happened with the EPA’s Pebble actions to date. We look forward to the day when our project is fairly and objectively evaluated.”

[Editor’s note: The full 346-page report, the executive summary of the report, and press releases related to the report can be downloaded at the Cohen Group website (www.cohengroup.net/news/reports) and at the Pebble Partnership website (www.pebblepartnership.com).]