Minnesota Environmental Groups Plan Appeal of Mining Project Approval

ST. PAUL, Minn. (CN) — Minnesota clean water activists say they plan to appeal a state court decision finding that state regulators’ concealment of negotiations to delay EPA input in the permitting process for a contentious mining project did not prejudice them.

A spokesman for the Friends of the Boundary Waters Wilderness said that while he could not speak for four other organizations or for the Fond Du Lac Band of Lake Superior Chippewa, who co-related a case against the Minnesota Pollution Control Agency, an appeal from his group was “guaranteed.”

“We would have wound up on the court of appeals almost no matter what the findings were,” spokesman Pete Marshall said. “Either side would have appealed it.”

Representatives of other organizations said they were still discussing the prospect, but were likely to join appeals of the order. 

Ramsey County Judge John Guthmann had found that while MPCA staff had caused procedural irregularities by deleting emails regarding a decision to ask the Environmental Protection Agency to delay submitting written comments on the controversial PolyMet mine proposal near Minnesota’s Boundary Waters, those irregularities did not prejudice the permitting process.

The mine, which would extract copper and nickel from northern Minnesota’s mineral-rich Duluth Complex rock formation, has been a point of controversy in the state since the U.S. Forest Service approved a land-exchange deal for its development in 2017.

The mine’s move through the permitting process has spawned lawsuits at every turn from environmental groups and local Native American bands and organizations concerned about its impact on the nearby Boundary Waters Canoe Area Wilderness and other watersheds. Supporters, meanwhile, point to the $1 billion mine’s promised economic benefits.

Guthmann’s Thursday ruling, several relators said, was a mixed bag for them. The case had been transferred to Ramsey County from the appellate court after the relators alleged that the MPCA had not included procedural irregularities in its National Pollutant Discharge Elimination System permit in the record. 

Guthmann sent it back to the higher court saying that while he had found some irregularities — deleted emails and notes regarding a request to the EPA to delay issuing its written comments before the conclusion of a public comment period — the emails’ later inclusion and the inclusion of a document the notes discussed meant that they did not prejudice the relators.

“Judge Guthmann’s order acknowledges a lot of the conduct that we think is problematic,” said Aaron Klemz of the Minnesota Center for Environmental Advocacy.

“We’re disappointed in the order,” Klemz added, “but we also think that the decision documents a troubling pattern of concealing evidence from the public and keeping it out of the public record.”

Marshall noted that even the later inclusion of emails and notes in the record came after a whistleblower exposed them.

“The MPCA didn’t do its job, and unfortunately… it took a whistleblower and it took a lawsuit in order for MPCA to do its job,” Marshall said. “That shouldn’t be part of the procedure.”

Former MNPCA commissioner John Linc Stine defended the decision to delay EPA input in January. 

“My concern was over the efficient use of staff resources,” Stine said. “I asked [former EPA regional office head Cathy] Stepp to consider whether it would be possible to comment at a later time when we could prepare a draft, a revised draft permit so that their comments could address the most up-to-date information.” 

Environmental groups aren’t the only ones bullish about appeal, however. PolyMet did not respond to a request for comment, but its stock price rose dramatically Friday morning.

The mine has one last permitting process to complete with the Army Corps of Engineers, but can expect to be tied up in litigation beyond that point. The company is also in the midst of appealing to the Supreme Court decisions by the Minnesota Court of Appeals which struck down its air emissions and dam-safety permits. Those appeals are scheduled for October.

“Obviously, this is a very complicated case, and a longstanding dispute,” Klemz said. “I think the key here is that, regardless of the ruling in this case, I think the facts that emerged in this trial are really important. Minnesotans saw that their agencies weren’t doing what they were supposed to do, in terms of protecting water and protecting public health.”

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