Supreme Court Will Not Hear Pebble Case

Steve Fiscor

Annually, E&MJ publishes the Project Survey in the January edition. It details capital spending plans worldwide. Some of the key takeaways from this year’s survey are that, while growth in investment spending will slow, it will still reach the highest levels in 10 years. Approximately $263 billion worth of projects are currently under construction. Moreover, the largest global mining firms, Anglo American, Barrick Gold, Freeport-McMoRan, Glencore, Newmont, Rio Tinto and Vale collectively are planning to spend 8% more in 2024 than they did in 2023. As far as investment by commodity, copper, gold, and iron ore garner the greatest share of investment after coal. The green energy transition, however, is one of the main drivers for project investment. Not all new mining projects are moving forward, especially in America.

The Alaska v. United States lawsuit was one of many lawsuits that the U.S. Supreme Court did not take up during early January. In an unusual legal maneuver, the state attempted to bypass the lower courts and have the justices rule on the U.S. Environmental Protection Agency’s (EPA) decision to veto the proposed Pebble copper and gold mine. The court did not rule for or against the Pebble project. It simply did not decide to hear the case.

Nevertheless, the decision was another setback for Alaska in general and Northern Dynasty in particular. During January 2023, the EPA issued a Final Determination to veto any dredge and fill operations in a 309 mi2 restricted area, representing the South and North Fork Koktuli River watersheds and the upper reaches of the Upper Talarik Creek watershed. The Pebble deposit and Northern Dynasty’s proposed project, as currently envisioned, occupy approximately more than 10-12 mi2 within this area. The EPA not only blocked the proposed Pebble project, but also any future development in this region.

Both Northern Dynasty and the State of Alaska believe this action was a major regulatory overreach, which the EPA asserted under the Clean Water Act. The State of Alaska could continue to litigate this using the lower courts and the case could reach the U.S. Supreme Court again. It would likely be a lengthy and costly process.

Whether the Pebble project is worthy of permit or not, Northern Dynasty should be afforded due process. For now, it suffers the same fate as five other proposed projects in the U.S. that have been stalled under the current administration, including the Resolution and Rosemont projects in Arizona, the Twin Metals and Polymet projects in Minnesota and the Arctic project in Alaska.

Steve Fiscor, Publisher & Editor-in-Chief, E&MJ

As featured in Womp 2024 Vol 01 -