Alaskan Federal Judge Sides With US EPA In Pebble Mine FOIA Litigation
On August 24, 2015, Judge H. Russel Holland of the US District Court for the District of Alaska dealt a blow to Pebble Limited Partnership’s (Pebble Partnership) efforts to obtain documents which it believes could support its claim that US EPA failed to comply with the Federal Advisory Committee Act (FACA) by coordinating with environmental advocates to effectively veto the prospective Pebble Mine project near Bristol Bay, Alaska.
At issue is US EPA’s “Proposed Determination” pursuant to Section 404(c) of the Clean Water Act, proposing restrictions on the discharge of dredged or fill material to protect the “unparalleled ecological value” of the Bristol Bay watershed. Pebble Partnership argues US EPA violated FACA by working with advocate groups to create the scientific assessment of potential mining impacts underlying the proposed determination. Pebble Partnership received a preliminary injunction enjoining US EPA from undertaking any work related to the Pebble Mine determination, pending resolution of Pebble Partnership’s FACA claims.
To support its claims, Pebble Partnership initiated a Freedom of Information Act (FOIA) suit alleging US EPA did not conduct an “adequate” FOIA search and challenging the Agency’s withholding of certain documents under FOIA’s “deliberative process” exemption. Judge Holland sided largely with US EPA, finding that “Pebble has not come forward with evidence of bad faith or a countervailing showing that undermines the court’s confidence in the adequacy of EPA’s search.” However, Judge Holland agreed to hold a limited in camerareview of US EPA’s withheld documents to determine whether the Agency appropriately applied FOIA’s “deliberative process” exemption. The decision is available here.
Unless the in camera review reveals US EPA unlawfully withheld significant documents, Judge Holland’s decision represents a blow to Pebble Partnerships’ efforts to support its FACA claims, and eventually, to develop the Pebble Mine project.