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Environment & Energy Report

EPA Chief Wheeler Recuses Himself From Pebble Mine Decision (1)

March 25, 2019, 7:00 PMUpdated: March 25, 2019, 9:19 PM

EPA Administrator Andrew Wheeler has formally recused himself from the ongoing Pebble Mine permitting process, according to an agency letter dated March 20 and obtained by Bloomberg Environment.

Wheeler’s decision comes as a disappointment to backers of the planned gold, copper, and molybdenum deposit, who hoped he would intervene to lift Obama-era Clean Water Act restrictions on the Alaska mine’s construction.

The Environmental Protection Agency could still attempt to lift the restrictions. Wheeler has delegated Pebble issues to EPA General Counsel Matthew Z. Leopold.

In his internal memo to EPA staff, Wheeler indicated that he formerly worked as a lobbyist for law firm Faegre Baker Daniels LLP, which has provided services to Pebble.

Though Wheeler said he “did not personally provide any such services” to Pebble, he nevertheless included the mine as an “additional voluntary recusal” to avoid the appearance of ethical concerns. Wheeler also stressed that he has no financial conflicts of interest.

Wheeler didn’t include Pebble Mine or the Pebble Limited Partnership—the company seeking to develop the project—in a previous statement listing former clients and issues he is avoiding.

EPA Action Still Possible

The 2014 proposed restrictions sharply limit the mine’s water pollution, making a Clean Water Act permit harder to obtain. The restrictions were issued before Pebble submitted a mine plan or applied for a permit.

But the restrictions were never finalized and legally can’t be until 2021, thanks to a court settlement the EPA reached with Pebble Mine in May 2017. Until then, the EPA has agreed not to impose more permanent restrictions under section 404(c) of the Clean Water Act, which addresses the dumping of dredged or fill material.

The Pebble Limited Partnership said its new mine plan is significantly different from the one the EPA sought to block in 2014, and therefore the restrictions should be lifted.

Pebble Mine is now going through a draft environmental impact statement with the Army Corps of Engineers. On March 20, the Corps said it hadn’t heard any “compelling” reasons to extend the comment period beyond 90 days, frustrating environmentalists and some Alaska natives, who have asked for more time.

The Corps is holding nine meetings for members of the public to comment on the draft EIS. The first one takes place March 25 in Naknek, Alaska, with more to follow on each of the next four days.

Long Chain of Events

Wheeler’s recusal is the latest in a head-snapping sequence of EPA decisions under President Donald Trump. In May 2017, former EPA chief Scott Pruitt moved to lift the Obama-era proposed water limits. But eight months later, Pruitt made a surprise decision to leave the restrictions in place.

Shortly before leaving office, however, Pruitt directed agency staff in a memo to consider stripping themselves of the power to veto projects under the Clean Water Act.

Pebble and its supporters have been calling on the EPA for months to abandon the veto.

Future EPA chiefs, or even regional administrators, could follow Pruitt’s lead and pre-emptively turn any state or private land “into a national park,” taking it off the table for development, Tom Collier, chief executive officer of the Pebble Limited Partnership, told reporters last June.

“I’m riled up about the precedent, but what drives me even more crazy is why this administration, which talks about federal overreach, would in January recognize the use of a pre-emptive veto,” Collier said. “That’s what Scott Pruitt did.”

In September 2018, a coalition of business groups, including Americans for Tax Reform, Americans for Prosperity, and Competitive Enterprise Institute, sent a letter to the EPA, urging it to strike down the 2014 proposed determination.

The proposed limits “would have a dramatic chilling effect on investment in America” and would block the creation of 2,000 jobs, the groups said.

They also alleged that it was “based on incomplete, shoddy analysis, and agency collusion with liberal environmental activists and other project opponents.”

The Pebble Limited Partnership said its mineral lode is “the most significant undeveloped copper and gold resource in the world,” containing 6.5 billion tons of known minerals and another 4.5 billion tons of assumed minerals.

To contact the reporters on this story: Stephen Lee in Washington at stephenlee@bloombergenvironment.com; Jennifer A. Dlouhy in Washington at jdlouhy1@bloomberg.net

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com; Jean Fogarty at jfogarty@bloombergenvironment.com; Rob Tricchinelli at rtricchinelli@bloombergenvironment.com