by Tony Davis, Arizona Daily Star
January 7, 2017
A key permit decision on the proposed Rosemont Mine — which would be the country’s third-largest copper mine — won’t be made until after President-elect Donald Trump takes office.
The Army Corps of Engineers said last week it doesn’t expect to issue its decision on a Clean Water Act permit for the mine until after Jan. 20, when Trump is inaugurated. It declined in response to a question from the Star to give a timeline for the decision.
A lower-level Corps office in Los Angeles recommended denial of the permit last July. The higher-level, San Francisco-based South Pacific Division will make the decision and continues to review records associated with the recommendation, said spokeswoman Heather Babb.
“This includes the final environmental impact statement, scientific studies and permit and agency comments,” Babb said in an email.
Two outside legal experts of widely different political views agreed that all things being equal, a Trump administration decision would likely be better for the mine than a ruling under the Obama administration. But that doesn’t make the mine’s approval a sure thing, said law professors Jonathan Adler of Case Western University and Patrick Parenteau of the Vermont Law School.
In fact, a recent statement from the Corps’ new South Pacific commander, Pete Helmlinger, to mine applicant Hudbay Minerals Inc., could be a signal that a denial is coming, said the two professors, who have closely followed the Army Corps for years.
Helmlinger, who started the job in August, toured the proposed mine site in the Santa Rita Mountains last month. He has advised Hudbay “that if the decision is to deny the permit, he would provide prior notification about the reasons the application does not meet regulatory requirements and would discuss any measures that could lead to a permit approval,” Babb told the Star.
Trump, while not taking a public position on Rosemont, has repeatedly blasted what he sees as federal regulatory overreach.
Obama has tightened a number of federal environmental rules and proposed many new ones, and his administration has in the past eight months denied permits to the Dakota Access Pipeline in North Dakota, to a coal export terminal in Bellingham, Washington, and to a mine on Forest Service land in Minnesota. The first two of those decisions were made by the Army Corps.
“If I’m seeking the permit for some sort of extractive project, the mine or something else, I prefer my chances in a Trump administration rather than the Obama administration,” said the libertarian-leaning Adler.
But as a military operation, “The Corps prides itself on maintaining independence from the political operatives,” at least at the level where this decision will be made, Parenteau said.
It’s not clear Rosemont would necessarily be high-profile enough for administration higher-ups to get involved or to have a major effect on the decision, added Adler. “But there is that possibility,” he said. “Agencies are aware that new folks may want to evaluate it differently.”
Babb said she can’t speculate how the Corps is leaning while its review is being conducted.
Parenteau, who has worked for environmental groups and federal agencies, said simple logic suggests Helmlinger’s statement could foretell a denial.
“No need to give Hudbay one last crack at it if the permit was about to be issued,” said Parenteau, senior counsel for Vermont Law School’s Environmental and Natural Resources Law Clinic.
“It’s certainly an indication, suggestive,” or a signal that a denial could be coming, said Adler, director of Case Western’s Center for Business Law and Regulation and a senior fellow for the Property and Environment Research Center, which seeks to improve environmental quality through free markets and property rights.
At the same time, there is often some degree of “back and forth” between the Corps and permit applicants over mitigation terms, Adler added. That happens if the Corps believes a project could be done in a way that meets its standards, but what’s proposed doesn’t specifically meet them, he said.
The Corps permit is one of two key decisions remaining for the $2 billion copper mine project. The other is a formal record of decision from the U.S. Forest Service. Rosemont would dispose of its waste rock and tailings on Coronado National Forest land while mining on private land.
Forest Service officials have been generally favorable to the project, having issued a tentative approval in December 2013 on the grounds that they believed the mine would meet all environmental laws.
But the Corps has been much cooler, with its Los Angeles-based officials repeatedly saying through 2014 that Rosemont’s plans to compensate for mine impacts on neighboring washes and streams were inadequate. The Corps has since said little publicly about the mine, other than to confirm the negative recommendation of July 2016. It has declined to release a copy of the recommendation.
The mine would remove about 243 million pounds of copper a year from Rosemont’s open pit. Hudbay has pledged to hire at least 400 permanent employees, many at high salaries. It commissioned a study by an Arizona State University economist that concluded the mine would bring many billions of dollars in economic benefits to Arizona over the project’s expected 25-year life.
But environmentalists and other mine opponents, including Pima County Administrator Chuck Huckelberry, have expressed concerns that the mine would pollute air and water, jeopardize imperiled species including a rare jaguar, and drain neighboring water supplies including the lush Cienega Creek. Their views have won acceptance at some federal agencies including the Environmental Protection Agency, but not from others such as the Fish and Wildlife Service.
Another reason a Trump administration decision isn’t necessarily a done deal is that Helmlinger is an Obama administration holdover, Adler and Parenteau said. Hudbay can appeal a negative decision to the Corps’ chief of engineers, who reports to the assistant Army secretary.
At the EPA, top regional administrator jobs traditionally flip when the White House changes parties, but there’s normally less political turnover at the Corps, the two professors said.
“The Army Corps is part of the Army. The military has a chain of command and a seniority system that is based on military criteria,” Adler said. “There aren’t as many political positions that are selected on a political basis.”
The question is whether Helmlinger will get any “direction” from above, Parenteau said.
“Hard to say, but I’m guessing not. If he grants the permit after all the negative things that have been said, that will raise red flags,” Parenteau said. “If he denies it will be interesting to see what the Arizona governor and congressional delegation does in response and whether there is enough flak to buck the decision up” to Trump’s assistant secretary of the Army.