Pebble Files FOIA Lawsuit Against EPA

In October, the Pebble Limited Partnership filed its third lawsuit against the Environmental Protection Agency, this time seeking documents Pebble alleges were not turned over through prior Freedom of Information Act requests. The EPA is moving forward to establish restrictions against water use in Bristol Bay which will likely prevent development of the Pebble deposit.

Pebble’s first lawsuit against EPA, filed in May, challenged the agency’s legal authority to veto necessary permits before the developer has applied for them. That lawsuit was dismissed as premature by Judge H. Russel Holland on September 26. Holland said the EPA must have issued a final agency decision or final agency action to provide the basis for a legal challenge.

The second lawsuit, filed in early September, alleges that the EPA has been collaborating with scientists and environmental groups to implement EPA’s “scheme” to prohibit mining the Pebble deposit. Those collaborations, says Pebble, were violating provisions of the Federal Advisory Committee Act. FACA, established in 1972, seeks to ensure that the outside citizens and committees who consult with federal agencies “provide advice that is relevant, objective, and open to the public.”

Pebble alleges EPA’s work with Trout Unlimited, Natural Resources Defense Council, the Bristol Bay Native Corporation, and others dating to at least 2008 has been anything but objective and open to the public. Judge Holland will hear from both parties in this lawsuit in November, as Pebble has asked that he issue a preliminary injunction against further EPA action.

Pebble is basing their accusation on a paper trail left behind from years of behind-the-scenes work between a number of environmental groups, scientists, and the EPA. The documents Pebble has obtained come from FOIA requests, but Pebble says the EPA is holding back from releasing more.

“We’ve received what I’d call the tip of the iceberg from EPA,” said Mike Heatwole, a spokesperson for Pebble. “In just one of our Freedom of Information Act requests, we now know that EPA withheld at least 30,000 pages.”

Much of what EPA turned over to Pebble so far is “heavily redacted,” according to Heatwole, and there are noticeable gaps in the email chain.

“We’ve received no emails from Administrator Lisa Jackson,” he said. Jackson served as EPA Administrator from 2009 to 2013, visited the Bristol Bay region, and was briefed by agency staff about the issues surrounding Pebble. It is also believed that Jackson used a private email account under the name “Richard Windsor,” and Pebble says so far they have received none of those emails either.

Pebble also points to missing emails of former-EPA official Phillip North. From the emails it has obtained, North appears to have been actively encouraging the agency to use its 404c authority long before a 2010 request made by area tribes, perhaps as early as 2005. North coordinated closely with environmental activists and others adamantly opposed to Pebble.

But the EPA told Congress this year that North’s emails from 2002 to 2010 are missing. It was reported by the National Journal that the hard drive on North’s laptop “crashed” around 2010, and the emails have not been recovered.

“If this is the most open and transparent process they’ve undertaken, as they’ve said it is, then the question is what are they hiding?” said Heatwole.

The FOIA lawsuit asks the federal court to force EPA to turn over the rest of any and all documents relating to the agency’s involvement in the Pebble process.

“There’s a counter-narrative to what the EPA has been putting out,” said Heatwole. “They’ve said their interests and actions started against Pebble when they received a tribal petition. But the email traffic clearly shows that they’ve had a lot of internal conversations well before that May 2010 petition.”

The complaint documents filed by Pebble, including some of the memos and emails it has obtained, can be downloaded here.