Shares in Vancouver’s Northern Dynasty Minerals Ltd. (TSX: NDM, NYSE:NAK) were down eight per cent Tuesday morning, following a final determination from the Environmental Protection Agency (EPA) on the company’s Pebble mine -- one that appears to effectively kill the project.
Northern Dynasty is now vowing to fight the decision in court.
“Today’s action by the EPA to preemptively veto the proposed Pebble Project is unlawful and unprecedented," said John Shivley, CEO of the Pebble Partnership, a Northern Dynasty subsidiary.
"This preemptive action against Pebble is not supported legally, technically,or environmentally. As such, the next step will likely be to take legal action to fight this injustice."
The Pebble project -- said to be the world's largest undeveloped copper-gold deposit -- would be situated in the watershed that drains into Bristol Bay, which is the most important and prolific sockeye salmon system in the world.
Concerns about the impacts on Bristol Bay salmon led to a final determination, released today, by the EPA that essentially prohibits the mine from being built, since it would restrict the disposal of any construction or mine waste within the watershed. And since all mines produce waste rock, it's hard to imagine how the project could be built without being able to deposit waste rock.
The EPA ruling states that “discharges of dredged or fill material for the construction and routine operation of the mine identified in the 2020 Mine Plan … at the Pebble deposit will have unacceptable adverse effects on anadromous fishery areas in the SFK and NFK watersheds.
“Accordingly, the Assistant Administrator for Water restricts the use of waters of the United States within the Defined Area for Restriction… as disposal sites for the discharge of dredged or fill material associated with future proposals to construct and operate a mine to develop the Pebble deposit.”
“Today’s decision may be the most popular thing the federal government has ever done for Alaska,” SalmonState executive director Tim Bristol said in a news release. “Thousands of Alaskans and over a million Americans from across the political spectrum have called for protection of Bristol Bay’s one-of-kind salmon resource from massive open pit mining and today, the EPA delivered.”
Northern Dynasty may have the State of Alaska on its side in any legal challenges it may launch against the EPA's decision. Alaska Gov. Mike Dunleavy has opposed federal intrusion into state affairs over the Pebble mine.
"This proposal is deeply concerning to Alaska," Dunleavy wrote in October 2022 to the EPA's Region 10, after the EPA indicated it would use its veto powers to prevent the mine from being built. "The proposed veto injects EPA into the very heart of Alaska politics."
"The land around Pebble was selected by the state for its mineral potential as part of the process in which Alaskans were granted statehood," Shivley notes. "EPA continues to blatantly ignore the state’s interest in this case.
"The EPA is violating the U.S. Constitution by taking away the state and the project’s legally protected property interests in the mineral rights underlying the land, without any just compensation," Shivley writes.
"Whether, and how, Alaska develops Bristol Bay's mineral resources or its fishery resources —or both, responsibly — is Alaska’s decision to make, considering the input of all stakeholders and working through the standard permitting process," Dunleavy wrote in October. "EPA would instead choke off further discussion, usurping for itself this important decision affecting so many Alaskans."
In response to today's EPA ruling, Dunleavy tweeted that "EPA's veto sets a dangerous precedent.
"My administration will stand up for the rights of Alaskans, Alaska property owners, and Alaska's future. The State of Alaska is responsible for developing its resources to provide for itself and its people."