The Minnesota Environmental Policy Act, passed nearly a half-century ago, has a noble goal: to encourage productive harmony between humans and the environment.
The law lays out an environmental review process for ensuring that the state’s natural resources are protected while the state’s land is developed. That process is especially important for projects that promise to have an outsize impact on the surrounding environment — projects like mines, pipelines and large residential or commercial developments.
And it’s about to be put to the test, likely before the year is out, on the mine that Twin Metals Minnesota would like to build in the northeastern part of the state.
Until now, Twin Metals has only offered glimpses of its proposal to build a copper-nickel mine — as yet untested in Minnesota — that would bring with it both the promise for major economic benefits and significant environmental risks, and that would be located just outside the Boundary Waters Canoe Area Wilderness.
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But as 2019 wanes, Twin Metals is poised to submit detailed plans to state and federal regulators for its proposed underground hard-rock mine in the Superior National Forest outside Ely, Minn.
It’s a significant step forward for the company, which has spent more than $450 million over more than a decade exploring the vast reserves of copper, nickel and precious metals deep underground; conducting environmental studies; and refining the mine’s configuration.
“It’s the culmination of years of work,” said Twin Metals Minnesota chief regulatory officer Julie Padilla.
The plan will lay out precisely how Twin Metals intends to mine the deposit for the next 25 years, and how the company proposes to address the mine’s expected environmental impacts.
And it kicks off the long and complex public process, known as environmental review and permitting, necessary for Twin Metals to get the government approvals it needs to operate.
Mine backers say that’s the time for the project to get an objective analysis, and for the mining company to receive feedback and make improvements to its plans. If that review shows the project can meet or exceed state and federal environmental standards, they argue, then it should be allowed to move forward.
But opponents who want to block the mine worry the process is geared toward ultimately approving it. Once a project begins the environmental review process, they argue, it can become very difficult to stop. And they say the process doesn’t ask the questions most pertinent to Minnesotans — including, whether the watershed of the Boundary Waters is the right place for a copper-nickel mine.
Impacts, mitigation and alternatives
Environmental review begins when a project proposal is submitted to state and federal regulators. On the state level, that’s the Minnesota Department of Natural Resources in the case of the Twin Metals mine. On the federal level, it’s the Bureau of Land Management.
The DNR will first determine exactly what regulators should study during what’s called the scoping period. The public will have a chance to weigh in then, too, through written comments and at public meetings.
From there, “environmental review is really that process where we identify and evaluate and disclose to the public the potential environmental effects of a proposed project,” said Barb Naramore. As the DNR’s deputy commissioner, she will help lead the state's review of the Twin Metals mine.
"We look not just at the project as proposed but at potential alternatives,” she said, “and the mitigations to those potential environmental impacts."
The environmental review period also gives the public several additional chances to weigh in, while regulators assess every aspect of the Twin Metals project.
But that’s as far as the environmental review process goes. It is an assessment of the merits of the project, and potential alternatives; it is not a decision about whether the project will move forward..
“There is the time to learn, and there's the time to study. And that takes place before there's a time to decide,” said Peder Larson, a former regulator himself — he served as commissioner of the Minnesota Pollution Control Agency in the late 1990s — and now an environmental attorney who represents, among other clients, Twin Metals.
The environmental review period, Larson said, is the time to learn and study.
Here’s how it works: Twin Metals will present regulators with its plans — plus reams of environmental data it's already collected. Regulators will vet that data and analyze the project's anticipated environmental effects — and how the company plans to mitigate those impacts.
They will also analyze other impacts of the mine, on things like cultural resources, endangered species and the regional economy.
The regulators and the regulated
Throughout this process, state and federal regulators will work closely with Twin Metals.
The DNR’s Naramore argues that it’s an efficient approach, so regulators can alert the company to any fundamental problems the project might have early on — or request additional data they might need.
"There's a lot of really important back-and-forth that takes place throughout the environmental review process,” she said, “around potential refinements to the project, and to the mitigation approaches."
Companies “are the ones doing the testing, the analysis, the modeling, everything that looks at what impacts there may or may not be from their project proposal,” said Frank Ongaro, executive director of the industry group Mining Minnesota.
They’re also footing the bill for the cost of environmental review and permitting. It’s not cheap: The PolyMet Mining company paid more than $200 million over more than a decade as it worked toward acquiring the state and federal permits it needed to build what is set to be Minnesota’s first copper-nickel mine.
“Everyone in the state of Minnesota should want the company and the agencies to work closely together to make sure they get it right, to make sure that the environment is protected,” Ongaro said.
But environmental groups worry that the approach muddies the relationship between the regulator and the regulated. They point out, accurately, that much of the data and studies that form the foundation of an environmental review is provided by the company or its consultants.
Regulating agencies scrutinize that work — and for complex projects will hire their own consultants to vet it — “but it’s not the same level of due diligence and neutrality as if the agency themselves or the agency’s consultants were doing that work,” said Kathryn Hoffman, CEO of the Minnesota Center for Environmental Advocacy, a group that opposes the Twin Metals mine.
“The agencies’ approach to the environmental review and permitting process tends to be that the companies themselves are the customers,” Hoffman argues. “And that means that you treat the customers with deference.”
State officials bristle at the suggestion they are too cozy with mining companies. The DNR’s Naramore said they are professional, but demanding.
"Our goal in environmental review isn't to facilitate the project,” Naramore said. [It’s] “not to make new friends. It's to understand the project and to help identify ways of reducing the adverse impacts from a project.”
Several years and thousands of pages
The results of the environmental review will eventually be compiled into what's known as an Environmental Impact Statement, or EIS. It will likely take several years to complete, and run thousands of pages.
Experts like David Zoll, a Minneapolis-based environmental attorney who also teaches an environmental law class at the University of Minnesota, say that by and large, the process has proven effective in Minnesota.
“It does gather information,” said Zoll. “It allows people to have a voice and be heard in the process in a way that, but for the Minnesota Environmental Policy Act and NEPA [the National Environmental Policy Act] on the federal level, we wouldn't have. And a lot of the decision-making would be based on information that isn't readily publicly available.”
Still, requiring a project’s impacts to be closely scrutinized, he said, does not guarantee that regulators will make a sound decision. It guarantees only that the project will be well studied and thoroughly analyzed.
In fact, Zoll said, there’s a great line from an early U.S. Supreme Court decision on environmental review that attorneys often quote in briefs: “NEPA merely prohibits uninformed — rather than unwise — agency action.”
The deciding time
While the environmental review process offers the foundation for what happens next, decisions on projects like Twin Metals are made in the permitting process. That step begins only when regulators determine that their environmental review was sufficient.
The DNR and MPCA will then rely on that EIS to guide their decisions on whether to grant Twin Metals the state permits it needs to open a mine. The federal Bureau of Land Management will conduct a separate review, which it will use to guide its permit decisions.
But they’re not deciding on the merits of the project. It’s not up to regulators to determine whether the benefits of the Twin Metals mine — the jobs and economic impact and importance of the metals — outweigh the risks, like the potential for severe water pollution or whether a spot just outside the Boundary Waters is the right place for that kind of mine.
“When you get to the ultimate decision on whether you issue a permit,” Zoll said, “it's largely based on numbers.”
That is: The decision to issue a permit is based on things like the amount of specific pollutants a mine will discharge, and whether that level is allowable under the law. It’s about meeting state standards, following state guidelines — but not about making a value judgment about the mine.
“There's relatively few permits or approvals that allow for the type of balancing of the broader social impacts of a project,” said Zoll.
If a project can demonstrate that it can meet environmental standards and other regulatory requirements — like providing financial assurances that the mine site will be cleaned up when it closes — then it gets approved.
"If you check all those boxes, then the mine shall be permitted,” said Tom Landwehr. He served as commissioner of the Minnesota DNR last year when it approved the permits for the PolyMet copper-nickel mine.
Now, Landwehr is fighting the Twin Metals project as executive director of the Campaign to Save the Boundary Waters. Opposing Twin Metals is the organization’s primary goal.
Landwehr said he believes in the regulatory process he was a part of, which ultimately approved the permits for the PolyMet project. Regulators should work with companies to help their projects meet state standards, he said.
But in the case of Twin Metals, he argues, state standards won’t do enough to protect the Boundary Waters. So even if the company can meet the state’s requirements for environmental protection and mitigation, the nearby Boundary Waters wilderness area won’t be truly protected, he said.
Unlike the PolyMet project, the Twin Metals mine would be located just outside the boundaries of the pristine Boundary Waters Canoe Area Wilderness, and within the Boundary Waters’ watershed.
Landwehr argues that the state standards regulators are bound to uphold are one-size-fits-all: They set the same limits on pollutants whether a project is in farm country or in the watershed of the Boundary Waters.
"The standards are not intended to protect wilderness,” Landwehr said. "The Legislature has said that we would anticipate, and we find acceptable, some degradation, because that's the cost of economic development. But that is not consistent with the purposes of the wilderness, which is to prevent any kind of degradation at all."
That's why groups like Landwehr's have been working to stop the Twin Metals proposal before it even enters the environmental review and permitting process.
They worry that once that process begins, Twin Metals will be able to refine its mine proposal over and over again, until it ultimately passes state muster. That's what happened with the PolyMet proposal: At each step of the 14-year review process, when state and federal assessors found problems, the company adjusted its proposal in order to meet standards.
Critics say that's giving unfair assistance to the company.
But “the environmental review process is not intended to stop projects,” Minnesota Senate Majority Leader Tom Bakk, DFL-Cook, said at a recent economic development meeting in Ely.
Instead, Bakk said: “It’s intended to mitigate impacts. So once they [Twin Metals] start down that road of applying for those permits, it’s pretty hard to stop,” even though it might take a decade or more.
But if companies are willing to make changes to their plans, often at significant additional expense, in order to satisfy regulators’ demands, then they should be allowed to proceed, industry backers say.
“We should be looking at it as a how do we get to ‘yes,’” said Mining Minnesota’s Frank Ongaro. "If a company can demonstrate it can meet all the standards and protect the environment, then why wouldn't we want to have the company, the investment, the jobs, and in this case, the metals that we are import-dependent on from other countries?”
In the end, how someone views environmental review's role in this process likely comes down to their preferred outcome.
"If you are a project proponent, you see environmental review as a necessary step in the process of getting your approvals. And you think of it that way,” said environmental attorney David Zoll.
But if you're someone who wants to stop the project, “you are looking at environmental review as a way to potentially create barriers to permits being issued, to identify impacts that can't be mitigated or shortcomings in the project that would result in the denial of a permit,” Zoll said.
That tug of war will start in earnest once Twin Metals submits its formal plan. And no one, said the DNR’s Naramore, knows how it is going to end.
“If there's one thing I've learned,” she said, “is there's nothing that is inevitable about these processes.”