Another gaping hole I realized in EPA's argument--Kings(chinook) and Coho ain't Sockeye.
EPA defends its action by valuing the Bristol Bay commercial salmon fishery, "$2.0 billion" and "15,000 jobs." FD at EPA_AR_0082945. That value is overwhelmingly sockeye-driven. Bristol Bay produces "about half of the world's Sockeye salmon." per EPA_AR_0082943.
But the streams EPA is protecting at the mine site don't contain sockeye. PLP's sampling of the 8.5 miles proposed for fill found Coho and Chinook, roughly 370 juvenile Coho and 50 juvenile Chinook in NFK 1.190, and 344 juvenile Coho and 12 juvenile Chinook in NFK 1.200. FEIS at EPA_AR_0095026, EPA_AR_0092560. Zero sockeye. EPA's own brief concedes sockeye are found "immediately adjacent" and "immediately downstream" of the mine site, not in the streams being destroyed. Doc. 215 p 46.
EPA bridges this gap through indirect mechanisms: headwater streams supply nutrients, gravel, and flow to downstream sockeye habitat. FD at EPA_AR_0083078-79. Scientifically plausible, but the Army Corps evaluated the same mechanisms and concluded the mine "is not expected to affect overall productivity in the greater Koktuli River basin." FEIS, Ch. 4 at EPA_AR_0095966.
The cost-benefit problem is straightforward. EPA credits the full $2.0 billion fishery value as a benefit of its action without ever disaggregating how much of that value is attributable to the Coho and Chinook actually found at the mine site versus the sockeye connected only through indirect downstream effects the FEIS found insufficient. EPA has species-specific harvest data in the record (EPA_AR_0083049) but never uses it to apportion the benefit. Under Michigan v. EPA, 576 U.S. 743, 752 (2015), cost-benefit analysis requires "consideration of all the relevant factors", including which species are actually affected and what those species are actually worth.
The brief's strongest species-specific link is Chinook: the Nushagak district accounts for 75% of Bristol Bay's commercial Chinook catch, and the Koktuli River is often the largest Chinook producer in the Nushagak watershed. EPA_AR_0083017, 0083030. But EPA never quantifies the Chinook-specific commercial value or separates it from the sockeye-dominated total, despite having species-specific commercial harvest data available in the record. EPA_AR_0083049.
Funnily enough, coming out of an old case from the NRDC v. EPA, an agency is "free to emphasize or deemphasize particular factors" but must provide a reasoned basis for doing. NRDC v. EPA, 25 F.3d 1063, 1071 (D.C. Cir. 1994). Aggregating all species into a single undifferentiated value and attributing it to an action whose primary ecological evidence involves different species than those driving the value is not reasoned emphasis, it is (intentional?) obfuscation.
tldr; EPA put $2.0 billion on the benefits side of the ledger. The ecological evidence at the mine site supports a fraction of that figure. How large a fraction is unknowable because EPA never did the math. There is no scientific disagreement, it's a simple analytical failure that makes the cost-benefit weighing un-reviewable. Kill shot. 🎯
Another contradiction in the response brief. Gosh is the DOJ purposefully throwing the case for us?
@taketheseodds @TyewayorHighway @kbeckermd
The brief contains three positions on the Expanded Mine Scenario that cannot all be true simultaneously.
Position 1: The expanded mine scenario is too speculative to include in the cost analysis. EPA excluded it because it "has not otherwise been proposed, and would require additional and separate permitting." Doc. 215 at page 91-92. The State of Alaska itself argued that "consideration of the Expanded Mine Scenario is inappropriate." RTC at EPA_AR_0083945. Okay, make sense, if it's speculative, don't count its costs.
Position 2: The restriction covers future mine plans for the entire deposit. The restriction explicitly applies to "future proposals to construct and operate a mine to develop the Pebble deposit" that would cause comparable impacts. FD at EPA_AR_0083172. An expanded mine is exactly the kind of future proposal the restriction targets. So EPA simultaneously says an expanded mine is too speculative to count as a cost but concrete enough to restrict.
Position 3: The restriction's costs are "similar" to the prohibition's costs. EPA argues a mine anywhere in the restriction area would have roughly the same economic value as the 2020 Mine Plan. RTC at EPA_AR_0084254. But if the expanded mine scenario is excluded as speculative, and the restriction covers future expanded plans, then EPA has no basis for claiming it assessed the restriction's actual costs, because the actual costs depend on the scale of future mining that the restriction prevents, which EPA refused to analyze.
Remember, the 2020 mine plan/preliminary economic impact statement was already significantly knee-capped to try and appease the EPA, only 20 years, limited mining, then forever monitoring, etc. BARELY tickling the value of mining the full deposit (1 Trillion USD ), generations of good jobs for the workers, stable infrastructure for one of poorest counties in America, etc.
You can hold any two of these positions. You cannot hold all three. If the expanded scenario is speculative, you can't restrict it and claim you've assessed the restriction's costs. If the restriction covers expanded mining, you need to assess the costs of preventing expanded mining. If the costs are "similar" regardless of scale, then the expanded scenario isn't speculative, it's a foreseeable economic loss you're choosing to ignore.