ST. PAUL, Minn. (CN) — The Minnesota Court of Appeals heard arguments Wednesday morning in a complicated collection of cases regarding a controversial proposed mine in the state’s northern reaches.
In a Zoom hearing, attorneys for the Minnesota Pollution Control Agency and mining company PolyMet defended the permitting process for the proposed NorthMet copper-nickel mine from charges that the regulator had glossed over important details when it approved water-protection permits for the mine.
The mine, proposed as Minnesota’s first copper-nickel mine and an economic shot in the arm for a region whose flagging iron mining industry was once the center of local commerce, has drawn scrutiny from environmentalists, Native American tribes and others concerned about its impact on local waters, particularly the state’s famous Boundary Waters wilderness area.
Attorneys for environmental groups Water Legacy, the Friends of the Boundary Waters Wilderness, the Minnesota Center for Environmental Advocacy and the Center for Biological Diversity and for the Fond du Lac Band of Lake Superior Chippewa argued that the pollution regulator erred in denying a contested-case hearing, failing to evaluate groundwater discharges or include effluent limits, and kept unflattering comments from the Environmental Protection Agency out of the record.
Judges Matthew Johnson, Lucinda Jesson and Randall Slieter peppered each side with questions as they sussed out the key issues in the case, which was consolidated from six separate appeals.
One of those issues was a question posed by the U.S. Supreme Court’s 2020 decision in County of Maui v. Hawaii Wildlife Fund, a Clean Water Act case that found that projects whose pollutants reach navigable waters require permits when they are the “functional equivalent of a direct discharge.”
In 2018, the MPCA issued a draft of a twin permit under the Clean Water Act: a combined National Pollution Discharge Elimination System (NPDES) permit, which regulates surface-water pollution, and State Disposal System (SDS) permit, part of a Minnesota program seeking to protect groundwater. The relators moved for a contested case hearing before the permit was issued, and the agency denied it. Their appeal was delayed by a parallel case against the Minnesota Department of Natural Resources, which was resolved in a mixed decision in April.
The Maui case and state Supreme Court decision, attorney Elise Larson of the MCEA said, represented a fundamental change to the landscape in which the permits had been issued.
“MPCA’s rules are substantially similar to DNR’s when it comes to determining whether this project is going to comply with the law,” she said at the hearing.
Whether or not the state Supreme Court’s decision was precedential, she said, was less important than the cases’ substantially overlapping facts.
Assistant Attorney General Bryson Smith, arguing for the MPCA, said the relators were catastrophizing the impacts of the project and improperly invoking Maui.
“It’s not sufficient just to have a discharge to groundwater; in order to implicate the Maui analysis, you have to have that discharge to groundwater reach surface water,” he said.
He critiqued relators’ attacks on the worst-case-scenarios, saying that discharges would take decades to reach surface water and that the agency has safeguards in place to detect and ameliorate discharges.
“The idea that there are discharges to groundwater that would reach surface water is entirely speculative,” Smith said.
Paula Maccabee argued for WaterLegacy, of which she is also the advocacy director. She said the MPCA hadn’t made its analysis to the standards of Maui, and that the agency had worked to conceal the EPA’s criticism by asking the federal regulator to submit its comments orally rather than in writing.