Alaska Asks SCOTUS to Correct EPA Wrongdoing.  

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Today’s Key Takeaways: Alaska asks SCOTUS to correct EPA land grab.  Another report sounds alarm over critical mineral supply.  Senate democrats frustrated over lack of permitting reform.  


Alaska Takes 404(c) Fight Directly to Supreme Court

July 26, 2023 (Anchorage, AK) – When the U.S. Environmental Protection Agency, (EPA), barred the U.S. Army Corps of Engineers, (Corps), from issuing any permit under Section 404 of the Clean Water Act for 309-square-miles of State land in Southwest Alaska, it effectively confiscated State property and created a de facto national park. Today Alaska Attorney General Treg Taylor filed a brief, calling on the U.S. Supreme Court to order the EPA to correct its wrongdoing. 

Section 404 of the Clean Water Act requires the Corps to issue a permit before any dredged or fill material can be discharged into waters of the United States. In January 2023, the EPA issued its final determination, known as a 404(c) veto, that not only specifically prohibited permitting the Pebble Mine according to a 2020 mining plan, but also restricted any future permit to construct or operate a mine in a 309-square-mile area surrounding the Pebble deposit. The EPA action usurps the State’s ability and responsibility to protect its own natural resources. 

“An original action, where a case is heard directly by the Supreme Court instead of first progressing through the lower courts, is an extraordinary ask, but it’s appropriate given the extraordinary decision being challenged,” said Attorney General Treg Taylor.

“No other State in the union depends so greatly on its lands for its prosperity,” the brief contends. “Unlike most States, Alaska is constitutionally required to protect its natural resources. The State must provide for the “conservation of all natural resources belonging to the State, including land and waters, for the maximum benefit of its people.”” Nonetheless, EPA made its final determination under Section 404(c) of the Clean Water Act before the State processes could work through the Pebble Project.

“Our constitution is clear: Alaska is responsible for utilizing, developing, and conserving all of the State’s natural resources for the maximum benefit of its people,” said Alaska Governor Mike Dunleavy. “Bureaucrats in Washington D.C. are exercising unbridled and unlawful power to choke off any further discussion on this important decision affecting so many Alaskans.” 

“The preemptive veto is alarming,” said Attorney General Taylor. “If EPA can rely on undefined terms and subjective standards instead of sound science to bypass the regular State and federal permitting processes here, it can do it anywhere, from large mining projects such as this, down to a family building their dream home. It’s an indefensible and unprecedented power grab that the U.S. Supreme Court should find unlawful.”    

“Alaska has some of the most robust environmental permitting requirements in the world ensuring development of critical natural resources occurs side-by-side with protection of human health and the environment,” said Commissioner of the Alaska Department of Environmental Conservation Jason Brune. “Congress intended Alaska to have primary responsibility over land and resource management decisions under the Clean Water Act’s framework of cooperative federalism. EPA robbed us of this opportunity.” 

Like the State’s environmental permitting processes, “Alaska’s Title 16 permitting process is designed to ensure conservation of fish and fish habitat. But these statutory protections were flouted by EPA before Alaska’s expert habitat and fish biologists had the opportunity to weigh in,” according to Alaska Department of Fish & Game Commissioner Doug Vincent-Lang. “The State’s career experts should be allowed to do their job without having Washington bureaucrats swooping in to prohibit an action before we even received a permit application.”

“The Alaska Statehood Compact and Cook Inlet Land Exchange were meant to ensure the State of Alaska would have the opportunity to responsibly develop its resources under its robust permitting regime,” said Commissioner of the Alaska Department of Natural Resources John Boyle. “EPA cannot unilaterally ignore these monumental Congressional actions.”

“The State seeks a declaration that the EPA’s veto is unlawful and an order setting it aside and enjoining its enforcement,” the brief requests.  “Alternatively, the State seeks damages for a breach of contract and just compensation for a taking.”

Read the brief to support a bill of complaint here.


New Report Sounds Alarm Over Critical Mineral Supply
Irwin’s Slav, OilPrice.Com, July 27, 2023

The future supply of several metals and minerals that are critical for the success of the energy transition is uncertain, threatening that success, GlobalData has said in a new report.

According to that report, the transition depends on the sustainable supply of these metals and minerals, including lithium, copper, cobalt, nickel, and rare earths.

However, most of these are not distributed evenly across the globe. Some of them are concentrated in challenging jurisdictions, such as the Democratic Republic of the Congo. Finally, China controls most of the supply chains for these minerals.



TimTarpley, Energy Workforce and Technology Council, July 27, 2023

Despite talks continuing on permitting reform, some Democratic members in the Senate are growing frustrated and looking for other options. This week, Sen, Joe Manchin (D-WV) and the Senate Energy and Natural Resources Committee held a hearing to examine opportunities to reform the process for permitting transmission lines, pipelines and energy production on federal lands. 

The majority of witnesses agreed the biggest hurdle to expanding transmission and shoring up the power grid is delays in permitting and litigation surrounding projects. Additionally, most members on the Committee were interested in pursuing permitting reform, understanding the dire need especially for transmission, but seemed open to more discussions on federal land and water leasing that is necessary for oil and gas projects along with wind and solar.

Discussions also continue in the House but given the fact that the House has already passed a large permitting reform package, it appears most likely that further action will have to start in the Senate.

Of note is that Senate Majority Leader Chuck Schumer (D-NY) is calling on the Federal Energy Regulatory Commission to “strengthen” and finalize a series of major rules that could help speed the deployment of clean energy transmission lines. Schumer focused on several proposed rules and inquiries issued in the past year and a half that have collectively generated extensive interest from clean energy developers, environmental groups, grid planners and state officials. The letter also laid out details that Schumer said should be changed once the commission finalizes the rules.

This all comes in context of action in January when the commission laid out a proposed plan to issue permits for certain transmission projects that the Department of Energy considers to be nationally significant and that have been denied a state permit. Leader Schumer would like this plan to be formalized as soon as possible. The letter also asked the commission to continue working on another proposed rule geared toward reducing delays for new energy projects trying to connect to the power grid which they are scheduled to consider today. 

Sen. Martin Heinrich (D-NM), a Senate leader on energy issues, released the text of a letter he plans to release highlighting similar thoughts. He wrote, “To achieve our national clean energy goals we will need to expand grid capacity by 60% by 2030 and triple our capacity by 2050.”

These kinds of public statements by Senate Democratic leaders are relevant for two reasons. First, it shows that they may be losing confidence in the potential for a bipartisan deal to be reached in the short term. Second, and more relevant for our purposes, this shows that they see a potential to get the transmission issues fixed through the regulatory process and not legislatively. One of the things that gave me and many watchers of this issue hope that a bipartisan deal could be reached is that permitting reform is needed by all constituencies on both sides of the aisle. Renewable energy needs reform just as much, if not more, than traditional fossil fuel energy. With everybody is in the same boat, this opens up the potential for a deal.

However, the “bad” news is that if Senate Democrats are able to take their main need in permitting reform (transmission) off the table, it will make them less likely to support a larger compromise package. All hope is not lost however, there is no guarantee that regulatory actions can fix all of the major issues that the Democrats are concerned about. Additionally, in Washington it’s hard to bet which body can move slower, Congress or the regulators. All of this comes in the context of election season being just around the corner. Past history suggests that once we get into October the clock stops in many respects. The coming weeks will be important to watch.