The Supreme Court has rebuffed a plea by the state of Alaska to revisit a federal veto of a massive mine, an attempt by oil companies to extract themselves from a climate lawsuit and a petition from West Coast farmers seeking more water from the Klamath River Basin.
In a long list of orders released Monday, the high court declined to take up Alaska v. United States, an unusual request from the Last Frontier to skip the lower courts and have the justices directly step in to reverse EPA’s veto of the proposed Pebble copper and gold mine in the pristine Bristol Bay watershed, home to one of the world’s premier salmon fisheries.
The decision, marking another chapter in the Pebble mine saga, deals a significant blow to Alaska Gov. Mike Dunleavy, a Republican whose administration asked the high court in July to undo EPA’s move to block Pebble and similar extraction projects on state land in southwestern Alaska.
Alaska officials have argued that EPA’s veto, issued under a rarely used Clean Water Act authority, trampled over the state’s sovereignty and ability to regulate its lands and waters. EPA in January exercised its authority to block the project via Section 404(c) of the Clean Water Act, a portion of the law that allows the agency to bar areas from being used as disposal sites — the South Fork Koktuli River and North Fork Koktuli River watersheds, in the case of Pebble.
Alaska Attorney General Treg Taylor (R) said at the time that taking the case directly to the Supreme Court for immediate review — instead of allowing the case to play out first in lower courts — was appropriate given the “extraordinary decision being challenged.”
The Justice Department responded by urging the Supreme Court in November to ignore the complaint. And despite the state’s pleas, the Supreme Court on Monday did just that. The court did not note any dissents.
Most petitions to the high court land in the justices’ rejection pile. The court takes up only a tiny fraction of cases that come its way.
Dunleavy in a statement vowed to continue fighting for the project and said the “careful” production of copper and other rare minerals like those found in the Pebble area are only growing more important as federal officials fast-track renewable energy development.
“The Supreme Court’s decision to not hear the State’s case directly is disappointing, but the State is confident that the lower courts will find that EPA violated the law with its prohibition and restrictions against any mining activity within the 309-square-mile area surrounding the Pebble deposit,” said the governor. “The State will continue to fight against this flagrant overreach.”
EPA and Alaskan tribes welcomed the high court’s decision, while developers of the Pebble project also vowed to continue fighting in court.
Remmington Belford, a spokesperson for EPA, said the agency agrees with the Supreme Court’s decision to reject Alaska’s complaint and that the final determination made last year protects waters in Alaska’s Bristol Bay watershed, the most productive wild salmon ecosystem in the world.
“Although we are glad to see the Supreme Court refuse to entertain Governor Dunleavy’s frivolous lawsuit challenging the EPA’s Clean Water Act veto of the Pebble Mine, we should have never gotten to this point in the first place,” Delores Larson, interim executive director of United Tribes of Bristol Bay, said in a statement.
John Shively, CEO of the Pebble Limited Partnership, said developers will evaluate their legal options in contesting EPA’s move to “preemptively stop” the Pebble mine, which he said is important for the state and nation as a source of jobs and much-needed critical minerals.
“While it is a disappointing decision, it is important to note that this is not a comment on the arguments put forward by the state,” said Shively.
Climate liability
The Supreme Court in its orders also dealt a major blow to the oil and gas industry, rejecting American Petroleum Institute v. Minnesota, fossil fuel companies’ latest effort to move climate liability lawsuits out of state courts.
The justices declined to take up the industry’s bid to transfer a case filed by Minnesota against Exxon Mobil, Koch Industries and the American Petroleum Institute to federal court, where industry lawyers believe they are more likely to avoid a multibillion-dollar payout to help local governments pay for intensifying storms and other effects of a warming planet.
The court did not elaborate, noting only that Justice Brett Kavanaugh, a Republican appointee, would have granted the oil companies’ request. The court rejected similar efforts from the oil industry last spring, and the cases are now advancing in state courts from Massachusetts to Hawaii.
“After three strikes, it’s time for these polluters to give up their failed arguments to escape state courts and prepare to face the evidence of their climate deception at trial,” said Richard Wiles, president of the Center for Climate Integrity, which backs the liability lawsuits.
Oil companies could be on the hook for hundreds of billions of dollars if they lose the climate liability cases, which have been filed by dozens of state, city and county governments across the United States. Industry lawyers have argued that climate change is a global problem and will not be resolved by individual states.
The Supreme Court’s rejection of companies’ request for relief “will allow the creation of a patchwork of state court rulings to interfere with important, federal regulatory efforts on climate change,” said Phil Goldberg, special counsel to the Manufacturers’ Accountability Project, an initiative of the National Association of Manufacturers that opposes the climate liability litigation.
He added, however, that the industry is confident that when the cases get to trial, “it will be evident that this type of climate litigation has no legal or factual foundation.”
Minnesota Attorney General Keith Ellison (D) said he appreciated the court’s decision, adding that it aligns with federal court decisions across the country.
“The court’s decision confirms these cases are properly filed in state courts,” Ellison said. “Now, the case can move forward in state court, where it was properly filed, and we can begin to hold these companies accountable for their wrongful conduct.”
Klamath River
The Supreme Court also handed Oregon and California farmers a second defeat in their challenge to the federal government’s management of the Klamath River Basin.
The decision denied an appeal from the Klamath Irrigation District (KID) to relocate its legal dispute with the Bureau of Reclamation to the Oregon state court system.
The case, Klamath Irrigation District v. Bureau of Reclamation, centers on Reclamation’s management of Oregon’s Upper Klamath Lake. In a lawsuit filed in 2019, the irrigation district argued that Reclamation should fully supply farmers with water rights before reserving flows to fulfill Endangered Species Act requirements to sustain salmon and suckerfish in the basin.
But the 9th U.S. Circuit Court of Appeals ruled in 2022 that the case could not move forward without the participation of the Klamath and Hoopa Valley tribes, which are the most senior water users in the basin. The Supreme Court in October rejected the irrigation district’s first appeal in the case, which focused on that aspect.
In its second appeal, known as “Klamath II,” the irrigation district focused on a 1952 law known as the McCarran Amendment. That law gives state courts the ability to adjudicate both state and federal water rights within a basin in a single proceeding. The irrigation district argued that the case, therefore, should have been heard solely in state court.
“Allowing unelected federal agency officials to reallocate water that state courts have adjudicated to others, while denying thousands of affected water rights holders judicial recourse in either state or federal court, not only undermines the McCarran Amendment — it fundamentally undermines the rule of law on a massive scale,” attorney Frederick Yarger, who previously served as Colorado’s solicitor general, wrote in the petition to the Supreme Court.
But Solicitor General Elizabeth Prelogar and Assistant Attorney General Todd Kim urged the Supreme Court to deny the appeal, noting that the federal Klamath Project, which includes lakes, rivers, dams and canals, spans multiple states.
“If petitioner were correct that a single state could unilaterally assume exclusive authority to adjudicate all the water rights in a river system that flows through other states, the consequences would be profound,” the Biden administration argued.
Gene Souza, Klamath Irrigation District’s executive director, told E&E News that the court’s order negates the McCarran Amendment.
“This decision is another disappointing erosion of our trust in the federal government to resolve disputes utilizing the rule of law,” Souza said. “The people who have sworn an oath to protect the Constitution of the United States are not paying attention to the laws of the land, including our supposedly unbiased court system.”
He added: “Western water law governs how we resolve disputes and is now Western water chaos.”
Michael Orcutt, fisheries department director for the Hoopa Valley Tribe, rejected that assessment, arguing the Supreme Court maintained existing water law by denying the irrigation district’s plea.
“That would have been a big step back in time in terms of precedent and federal management of the whole United States in my opinion,” Orcutt said, adding that the court’s decision maintains Reclamation’s ability to ensure water supplies for endangered species in the region.
