Minnesota Supreme Court deals another setback to proposed NorthMet mine
Three major permits the NorthMet mine needs to operate have either been revoked or sent back to state agencies for additional work.
The Minnesota Supreme Court has dealt another blow to the proposed NorthMet copper mine in northeastern Minnesota. In a 64-page ruling released Wednesday, the court sent a key water quality permit for the mine back to the Minnesota Pollution Control Agency for additional work.
It’s the latest setback for the mine formerly known as PolyMet, now owned by a new entity called NewRange Copper Nickel. Earlier this year the U.S. Army Corps of Engineers revoked a key federal wetlands permit the mine also needs to operate, over concerns the project would result in pollution downstream on the reservation of the Fond du Lac Band of Lake Superior Chippewa.
NewRange is aiming to build what would be the state’s first mine for copper, nickel and precious metals. The company has proposed developing an open pit mine near Babbitt, Minn., and shipping the ore to an old taconite facility near Hoyt Lakes, Minn. for further processing.
The company received the state and federal permits it needs to construct the mine in late 2018 and early 2019, but it has been held up by litigation ever since. It first started the review and permitting process in 2005.
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Irregular process
The project, as the court noted, “brings with it potential environmental impacts unique to this type of mining,” namely the potential to release acid rock drainage, toxic metals and sulfate into nearby waterways and groundwater.
A central issue in this case involved how the Minnesota Pollution Control Agency handled concerns over the water quality permit, known as a National Pollutant Discharge Elimination System, or NPDES permit, from officials at the U.S. Environmental Protection Agency.
EPA staff had told the MPCA they had concerns that the draft permit was not stringent enough to comply with the federal Clean Water Act.
But rather than receive those concerns from EPA staff during a public comment period, as was typical with previous permits, Minnesota regulators asked the EPA to delay submitting those written comments. EPA officials ended up reading their comments over the phone.
That irregular process only came to light through EPA whistle blowers who shared email correspondence and through FOIA requests filed by environmental groups.
Unanimous decision
A Minnesota district court and the state appeals court largely cleared the MPCA of wrongdoing, but the state supreme court, in a unanimous decision, disagreed.
“We conclude there are danger signals suggesting that the MPCA did not take a hard look at whether the permit complies with the Clean Water Act (CWA) and that the MPCA did not genuinely engage in reasoned decision-making in dealing with concerns that were raised by the EPA,” the court wrote in its decision.
The court noted that the MPCA failed to document significant concerns that the EPA had with the permit, failed to explain how it responded to those concerns, and failed to document its communications with the EPA in the final administrative record.
“The motivation of the MPCA to avoid public scrutiny, as found by the district court, is not only contrary to the purposes of the Minnesota Administrative Procedure Act but also is inconsistent with the cooperative federalism model of the CWA [Clean Water Act] and the primary objective of the CWA to ‘restore and maintain’ the nation’s waters,” the court wrote.
Environmental groups who appealed the case to the state supreme court praised the decision, saying it has impacts beyond the NorthMet project.
“The Minnesota Supreme Court recognized that what our state agencies do during permit review processes matters,” said Joy Anderson, senior staff attorney for the Minnesota Center for Environmental Advocacy.
“This decision is important not only for the PolyMet case, but to ensure that when our state agencies make any decision that affects Minnesotans, they do so openly and fairly.”
David Schultz, a political science professor at Hamline University and a law professor at the University of Minnesota, wrote an amicus brief in the case with Mehmet Konar-Steenberg, chair of energy and environmental law at Mitchell Hamline School of Law.
In it they argue in support of the environmental groups and the Fond du Lac Band, to make a case Schultz said was largely echoed by the court.
Schultz said the Minnesota Administrative Procedures Act lays out a process where all interested parties are supposed to have an opportunity to submit comments.
“The failure to let the EPA participate, the failure to take into consideration information, created such a defective process, that the decision to issue the permit was wrong,” Schultz said. “And in fact, the process was so bad, that it probably prejudiced the decision about issuing the permit.”
In a concurring opinion that was signed by five of the seven justices, Justice Ann McKeig scolded the MPCA for “the serious disservice” it did to Fond du Lac Band of Lake Superior Chippewa.
“By failing to make a record of how the agencies resolved the inadequacies that the EPA identified in the draft permit, the MPCA continued this country’s centuries-long history of threatening tribal resources with political disregard of tribal rights,” McKeig wrote.
Andrea Cournoyer, communications director for the MPCA, said the agency recognizes the court’s order to reassess NorthMet’s wastewater permit.
“The federal government's recent action to revoke PolyMet’s wetlands permit will also require careful consideration in determining next steps,” Cournoyer said. “We continue to seek clarity from the federal government and the company on how to address these critical water quality issues.”
Narrowly tailored remand
In a statement, NewRange Copper Nickel said it looks forward to working with the respective state, federal and tribal agencies to address the court’s ruling. The company said it is “confident that the additional proceedings will confirm the project protects water quality for all.”
“Today’s Minnesota Supreme Court ruling is incredibly disappointing, especially given our State’s commitment to a clean, carbon-free energy future that cannot be realized without the minerals that NewRange Copper Nickel has proposed to safely bring to the surface,” added Julie Lucas, who directs the industry group Mining Minnesota.
The case now gets sent back to the MPCA. But the court did not order the agency to reopen the entire public comment period on the permit, as environmental groups and the Fond du Lac Band of Lake Superior Chippewa had requested.
Rather, the court said its remand is “narrowly tailored,” to give the EPA an opportunity to provide written comments on the final water quality permit, and for the MPCA to respond to those comments.
The court also directed the agency to include stricter effluent limits from the mine in the permit, something the EPA had initially called for, if the MPCA deemed that necessary to comply with the Clean Water Act and state and tribal water quality rules.
And, in another part of the ruling, the court sent the permit back to the MPCA to determine whether more action is needed to prevent pollution seepage into groundwater from the mine’s waste rock and tailings basin.
That means three major permits the NorthMet mine needs to operate have either been revoked or sent back to state agencies for additional work.
“So if you look at the entire landscape, all of PolyMet’s major permits are in trouble, and there are multiple different issues that would have to be resolved,” said Paula Maccabee with the environmental group WaterLegacy, another one of the appellants.
“And resolving those issues would certainly take a great deal of time, and might not even be possible.”
