Updated at 2:45 p.m. EST.
Out of the gate in 1993, the new Clinton administration confronted one of its most vexing environmental questions: Was there was a way to protect critical habitat for the northern spotted owl and not devastate the Pacific Northwest’s timber industry?
Tasked with blazing a trail to an answer through a thicket of environmental, legal and economic complications was Interior Secretary Bruce Babbitt’s right-hand man, chief of staff Thomas Collier.
"A number of times … administrations had attempted to prepare a timber plan for the Pacific Northwest and the courts had thrown those plans out as not being adequate," Collier recalled in a recent interview.
The Northwest Forest Plan was hashed out by the Clinton administration at countless meetings with competing stakeholders and adopted in 1994. Though seemingly unpopular with everyone, the plan passed legal muster and is still in place today. Collier points with pride to a thank-you letter from President Clinton he keeps on display.
Now Collier, 63, is using lessons learned from his time in the Clinton administration in his new role as CEO at Pebble, which is pressing on with an effort to build a massive Southwest Alaska mining project opposed fiercely by environmentalists and sportsmen. The mine’s critics, including within the current administration, say it threatens a thriving salmon fishery and the Bristol Bay watershed.
Picked last year by Pebble’s parent, Northern Dynasty Minerals Ltd., to lead the fight for the mine, Collier — who’d been an attorney at Steptoe & Johnson LLP — launched three lawsuits against U.S. EPA on top of a Capitol Hill lobbying and public relations blitz.
Though Pebble has yet to win a clear court victory, Alaska U.S. District Court Judge Russel Holland decided last month that at least one of the company’s arguments against EPA was strong enough to halt all agency work related to the mine (Greenwire, Dec. 9, 2014).
Repeating the Clinton administration’s mantra in the Northwest timber fight — that economic and environmental health can go hand in hand — Collier said of the Pebble project: "I think it’s possible to develop a mine on Bristol Bay that protects the salmon."
If not, he said, regulators should determine the gold and copper project’s fate through the National Environmental Policy Act process, rather than having EPA restrict development pre-emptively under Section 404(c) of the Clean Water Act. The law generally allows the agency to block Army Corps of Engineers permits for dredge-and-fill projects that threaten aquatic resources.
"I learned three very important things from both Al Gore and Bruce Babbitt," Collier said. His list: It’s possible to balance development and protect the environment; science should guide federal decisionmaking; and following the NEPA process is key.
"I think those two guys were committed to those three principles," he said.
Babbitt, just months after Collier became Pebble’s CEO, came out against the mine and in favor of the Obama administration’s pre-emptive limits in a Seattle Times op-ed. He also took aim at pro-mining efforts against the agency.
"Though these efforts and claims hold no merit, if sustained, they would only mean further delay and uncertainty for the people of Bristol Bay," Babbitt wrote. "This is unacceptable."
But Babbitt told Greenwire last week he and Collier remain friends despite the disagreement. In an email, he said, "Tom Collier was an excellent chief of staff."
Collier, for his part, said he has many friends from the Clinton days who are now working for the Obama administration. "My Pebble job has not negatively impacted any of those friendships," he said. "That’s not to say, of course, that any of them agree with me on Pebble simply because of our friendships, but perhaps I can offer a different perspective about the project from time to time."
EPA’s defense of its work on the Pebble project leans heavily on science and NEPA. The agency says that its study of potential threats to Bristol Bay was spurred by a petition from Alaska tribes and that it proposed limits on mine development based on peer-reviewed science in the Bristol Bay Watershed Assessment (E&ENews PM, Jan. 15, 2014).
"The science is clear that mining the Pebble deposit would cause irreversible damage to one of the world’s last intact salmon ecosystems," EPA Region 10 Administrator Dennis McLerran said last summer. "Bristol Bay’s exceptional fisheries deserve exceptional protection."
But Collier said EPA and the mine’s opponents are throwing NEPA "under the bus" by not letting the Clean Water Act permit process run its course. He said it’s ironic since many Pebble critics are staunch NEPA defenders.
"What we want to do is be able to use the same process that every other developer for every other significant project in America over the last 40 years has used," Collier said. "That’s our goal. Period."
‘Big boat’
Collier, a Memphis, Tenn., native, is a graduate of the University of Virginia and the University of Mississippi School of Law.
He distinguished himself as editor of the Mississippi Law Journal and clerked for Judge Charles Clark of the U.S. Court of Appeals for the 5th Circuit, who retired in the early 1990s and died in 2011.
Collier arrived in Washington, D.C., in the mid-1970s to work for Steptoe, one of the capital’s best-known firms, but soon left for government service at the Department of Housing and Urban Development.
Collier returned to Steptoe in 1981, and it was through the firm’s work in Arizona that he met Babbitt, who had been the state’s attorney general and governor during the 1970s and 1980s and then became a partner at Steptoe.
When Clinton won the presidency in 1992, Collier said "everyone was speculating that [Babbitt] would probably be in the Cabinet." They were right. Babbitt, after all, had experience in state and national politics, plus had been head of the League of Conservation Voters.
Collier said he expressed interest in returning to government with Babbitt. It paid off. By becoming Babbitt’s chief of staff, Collier became a player on energy and environment issues.
"Bruce wanted to run the department more like a governor’s office than a normal Cabinet office," Collier said. "The major difference is, Bruce had asked the president not to appoint a deputy secretary and have the department run by the chief of staff."
And that shoved Collier into the battle over the spotted owl.
Despite court approval, the plan for Northwest timber and the owl failed to fully satisfy regional timber or environmental interests. But his work on behalf of Interior in negotiations and hearings taught Collier some real-life lessons in dealing with controversial environmental issues.
One of the biggest challenges, he recalled, was maneuvering the federal bureaucracy, which he compared to a "big boat." He said, "You don’t do it overnight."
At the same time, Collier said, "The learning curve is not as steep as you might think. In all these Cabinet departments, there is a strong group of very talented career folks."
Beyond timber issues, Collier was also involved in Western grazing disputes, the Everglades restoration and a range of Endangered Species Act disputes before he left Interior to return to Steptoe in 1995.
Collier, married with three grandchildren, is at home in Washington’s Capitol Hill neighborhood. He’s often at Hank’s Oyster Bar on Pennsylvania Avenue near the Capitol.
But Collier said he’s also enjoying his time in Alaska. He described how the large state can feel like a small town in that people know each other. Collier said he also enjoys hiking, and his time up north has rekindled his interest in salmon fishing.
Collusion claims
Collier’s work for Pebble is guided in no small part by lessons he learned at Interior.
Consider how Collier came to know a lot about the Federal Advisory Committee Act, or FACA.
When the Clinton administration set up a scientific panel on the endangered Alabama sturgeon, Collier said, it ran afoul of FACA — much to his surprise.
"The court ultimately held that whatever we had done didn’t comply" with FACA, he said. "A very clear understanding that if as a federal agency you’re going to seek advice from stakeholders, that the only way you can do it is by setting up a FACA."
So consider that one of Collier’s legal maneuvers for Pebble was about FACA. A Pebble filing in September accused the agency of working with outside activists and scientists to block the mine that started before the Native groups filed their petition (Greenwire, Sept. 25, 2014).
The lawsuit accuses EPA of creating three federal advisory panels outside of FACA — an Anti-Mine Coalition FAC, an Anti-Mine Scientists FAC and an Anti-Mine Assessment Team FAC.
"Until I sat down myself and read all these documents, and the hundreds and hundreds of emails, I didn’t realize the extent" of EPA’s cooperation with outside interests, Collier said. "I didn’t understand the quantity of contacts that had taken place, nor did I understand the quality of them."
The complaint says former EPA scientist Phil North helped work with outside groups to push for an agency veto of the mine. Congressional Republicans have been trying to question North for months (E&ENews PM, July 17, 2014).
The complaint also says consultant Ann Maest — involved in discredited Stratus Consulting Inc. research, which helped buttress an $18 billion pollution lawsuit against Chevron Corp. — was one of the anti-mine scientists.
During a hearing in November, Judge Holland was skeptical of the company’s 138-page complaint and claims about the Anti-Mine Coalition FAC and an Anti-Mine Scientists FAC. However, he saw enough evidence on the Anti-Mine Assessment Team FAC to issue the injunction.
EPA has defended its actions by citing the need to consult with numerous groups and experts on any major decision. And it has said the entire record on the issue has led its actions, rather than specific groups or scientists.
"Whatever interests [Pebble] may have in this matter simply do not outweigh the public interest in permitting the orderly progress of a major agency decision-making process about which thousands of other individuals and groups care deeply," EPA said in a court filing.
EPA was originally hoping to determine whether to scrap or move forward with proposed limits on Pebble by February. But Holland’s schedule for both sides to submit briefs, plus his prohibition on the agency reviewing public comments, means the process timeline will slide.
So Collier can say he has already succeeded in thwarting EPA’s plans, at least temporarily.
Zoning watersheds?
Even though the FACA lawsuit has received significant attention, it was Collier’s first lawsuit as Pebble CEO that goes to the heart of the company’s argument against the Obama administration.
The complaint argues EPA cannot legally use Section 404 of the Clean Water Act to limit development prior to the permitting process.
In 2013, the U.S. Court of Appeals for the District of Columbia Circuit upheld the agency’s post-permit veto of permits for a West Virginia mountaintop-removal coal mine, saying EPA could veto permits "whenever" it decided under the Clean Water Act. But Pebble backers, citing new legal arguments, say the courts have yet to rule definitively on pre-emptive action.
Holland tossed Pebble’s complaint, saying he didn’t have jurisdiction to review a dispute that remains in flux. After all, EPA could ultimately decide against restrictions for the Pebble project.
Pebble is appealing to the U.S. Court of Appeals for the 9th Circuit, and Collier said he’s confident judges there will agree that EPA has already overstepped its authority by even contemplating pre-emptive action.
Pebble’s not challenging a veto decision, the company said in a December brief. "Rather, it is challenging EPA’s jurisdiction to invoke the veto process now, before a permit has been sought," it said. "The veto proceeding itself will not even address this issue, and EPA has not contended that it will."
EPA said in its brief that until the agency makes a final determination, "a court cannot know whether EPA Headquarters will in fact make such a final determination, whether it will be made before or after Pebble submits a permit application, or whether any final determination that is made is limited in ways that may avoid injury to Pebble."
Groups including Trout Unlimited, United Tribes of Bristol Bay, Nunamta Aulukestai, Bristol Bay Native Corp. and the Natural Resources Defense Council are participating in the litigation on EPA’s side.
The groups’ fervor doesn’t surprise Collier. To him, they are working with EPA to do much more than simply block a mine. Collier sees them as wanting to increase government’s power over the nation’s waters.
Collier points to an internal EPA document to former Administrator Lisa Jackson outlining the pros and cons of action against Pebble. EPA staffers said it could promote sustainability goals and "serve as a model of proactive watershed planning." On the downside, they said the agency could set a "precedent for future 404(c) actions."
EPA’s current Administrator Gina McCarthy has said the agency was not trying to set any precedents. But last year, Wisconsin tribes asked the agency to begin similar proceedings against a proposed iron mine there.
"It’s becoming increasingly apparent to me that one of the things EPA is trying to do and the [groups] are trying to do is expand Section 404(c) beyond its intent so they can zone watersheds across America," he said.
"You can have a debate all you want about whether it’s smart for the federal government to zone America," he said. "But what you can’t argue is that the Clean Water Act never intended to give the federal government authority to zone watersheds."
Trout Unlimited Alaska program chief Tim Bristol said Collier’s theory is false. "It’s clearly a conspiracy theory," he said. "They’re trying to turn this into a parade of horrible argument."
EPA was promoting safeguards, he added, in a specific geographic area against what he called "unprecedented development" near the "largest single sockeye salmon fishery in the world."
Pebble is far from dead — Collier
Many Pebble opponents and other observers have been wondering whether Pebble has the money to pursue its legal options and go into the permitting process. "Pebble is really nothing but a shell," Bristol said.
That’s because Anglo American PLC, the company’s longtime main financial backer, pulled out of the project back in 2013. Rio Tinto PLC, which owned a much smaller share, backed out last year.
But Collier has a response to those who think the mining project is all but over: "We wouldn’t be doing any of that stuff if we were dead."
He added, "We’re confident that we’re going to end up with another partner."
Northern Dynasty announced this week the placement of almost 36 million special warrants, financial instruments that could convert to company stock. The gross proceeds, as expected, were more than $13 million.
A Barbados-based investment company called Stirling Global Value Fund Inc. acquired more than 7 million of the special warrants. Along with previous investments, it stands to control about 15 percent of the company.
Beyond the legal and financial questions surrounding Pebble, the political landscape shifted after last year’s elections. The Republican-controlled House has long questioned EPA’s intervention against the mine, and now the Senate may follow suit.
In Alaska, former Gov. Sean Parnell (R) and former Attorney General Mike Geraghty had long fought efforts meant to make permitting tougher for the mine. New governor Bill Walker is against Pebble but is, at the same time, not keen on EPA intervention.
In the past, the state intervened against an anti-Pebble ballot initiative. But voters approved a new one last year requiring legislative approval for the mine. It remains unchallenged.
For now, Pebble’s focus is on what EPA might do when the injunction lifts.
Collier believes NEPA’s on Pebble’s side concerning EPA proposed restrictions.
"I think they recognize that if we get into an [environmental impact statement]," he said, "we’ll establish a scientific record to prevent that."
