The Arizona Court of Appeals has dealt a sizable blow to environmentalists set on stopping a proposed open-pit copper mine 30 miles southeast of Tucson in the Santa Rita Mountains, just west of State Highway 83.
In a unanimous decision, a panel of three judges overturned a lower court's ruling, deeming the air-quality permit issued by the Arizona Department of Environmental Quality satisfactory and giving the Rosemont Mine project the go-ahead.
"The record does not demonstrate the Department's decision was contrary to law, arbitrary and capricious or an abuse of discretion," the judges write. "Accordingly, we reverse the superior court's order and affirm the Department's decision to issue the air-quality permit."
ADEQ issued the permit in 2013 to the Rosemont Copper Company, after concluding that the mine wouldn't have a significant and harmful effect on air quality in the area. A Canadian corporation, Hudbay Minerals Inc., purchased a controlling interest in Rosemont Copper the following year.
Save the Scenic Santa Ritas, an environmental group, appealed the decision, arguing that ADEQ "cooked the books" in estimating how much air pollution the mine would create. Court documents show SSSR alleged ADEQ's calculations were too conservative and that the background levels didn't sufficiently take into account air pollution from nearby Tucson.
In April 2014, an administrative judge ruled in favor of the defendants. But SSSR appealed, and in 2015, the Maricopa County Superior Court ruled in favor of the environmentalists, writing that "the action of the AZDEQ was contrary to law, was arbitrary and capricious, and was an abuse of discretion."
ADEQ and Rosemont Copper appealed that decision, and the appellate court ruled in their favor earlier this week.
"It was a unanimous decision. I was very surprised. I felt our lawyer did a very good job and that the evidence was on our side," says SSSR president Gayle Hartmann. "I still believe this mine, if it happens, will cause very serious air pollution — there's no question it will. I'm not sure why they ruled the way they did."
Randy Serraglio, Southwest conservation advocate for the Center for Biological Diversity, a group that also strongly opposes the mine, writes in an e-mail to New Times that his organization "agrees with [SSSR] that the books were cooked in Rosemont’s air quality modeling, and that any fair analysis of the science underlying this permit issuance would show that it is fatally flawed.
"The appeals court ruling on the air quality permit is indicative of a general deference the judiciary tends to show to agencies that make such permit decisions," Serraglio adds. "All the court determined was that the agency had sufficient evidence in the record to make its decision. It did not rule on the merits of that evidence, the accuracy of Rosemont’s air quality modeling, or the scientific integrity of the analysis done to support the permit issuance. In essence, the court merely ruled that the agency had something to hang its hat on, regardless of whether that basis actually supports issuance of the permit."
A spokesman for HudBay did not immediately respond to a request for comment, but HudBay vice president Patrick Merrin told the Arizona Daily Star, "We are pleased with the court's decision that validates the Arizona Department of Environmental Quality's hard work and depth of expertise when it granted the air permit."
Hartmann says SSSR will discuss whether to appeal the case to the Arizona Supreme Court. Regardless, the mine must clear two additional hurdles before it can become operational.
The first: a decision by the Army Corps of Engineers about whether the project meets Clean Water Act standards expected later this summer. The second: a looming lawsuit from the Center for Biological Diversity alleging that the project violates the Endangered Species Act. On June 29, the center filed a 60-day notice of intent to sue the U.S. Fish and Wildlife Service over its final biological opinion concerning the impact of the mine, should it rule in favor of the project.
The mine is expected to be nearly one mile wide and 3,000 feet deep. That would make it the nation's third-largest open-pit copper mine. According to the appeals court's decision, the mine will produce "221 million pounds of copper and 4.7 million pounds of molybdenum a year, along with smaller amounts of gold and silver" and will be operational for about 20 years. It is expected to directly employ about 400 people.
Proponents of the project, which include the Tucson Chamber of Commerce and the Arizona Builders Alliance, say the mine will help the local economy.
Critics, including more than a dozen environmental organizations and the Pima County Board of Supervisors, argue that the mine will harm the local economy by adversely affecting tourism and will cause untold environmental and ecological problems.
The mine also has been criticized by the U.S. Environmental Protection Agency, the Arizona Game & Fish Department, and U.S. Reps. Raul Grijalva, Ann Kirkpatrick, and Ruben Gallego, all of whom have expressed concern about the project's impact on protected waters and its proximity to Tucson.
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"This is just the wrong place for a mine," Hartmann sums up. "There will be large-scale damage to water quality and quantity — that's not a question — as well as to air, wildlife, and native sites."
Read the Arizona Court of Appeals decision below: