ST. PAUL, Minn. (CN) — The Minnesota Supreme Court on Wednesday reinstated a challenge to the NorthMet mining project’s air emissions permit Wednesday, raising yet another hurdle for advocates of the controversial copper-nickel mining project in northern Minnesota.
A collection of environmental groups appealed the Minnesota Pollution Control Agency’s December 2021 issuance of an air emissions permit for the NorthMet project early in 2022, arguing that the agency hadn’t adequately addressed concerns that mining company NewRange Copper Nickel was pursuing a “sham permit” with the intent to expand operations in excess of its permits’ limitations after the fact.
The appeal faltered a year ago when the Minnesota Court of Appeals found that the challengers had failed to perfect their appeal because they did not serve the petition on counsel for NewRange’s predecessor, PolyMet Mining, within 30 days of the permitting decision. Simply serving the petition on PolyMet itself, and serving counsel the day after the deadline, the court ruled, was not enough to satisfy the requirements of the Minnesota Administrative Procedure Act.
In Wednesday’s decision, the Minnesota Supreme Court disagreed.
“Even if the word ‘parties’ was ambiguous, surrounding statutory language and other provisions of the Minnesota Administrative Procedure Act bolster the interpretation that ‘parties’ means the parties themselves,” Associate Justice Gordon Moore wrote in the court’s opinion. “The statute does not direct agencies to state whether the parties are represented by counsel and, if so, the names and addresses of their attorneys. If the Legislature had intended to require service on a represented party’s attorney, one would expect [the statute] to require agencies to share this type of information along with identifying the parties ‘[f]or the purpose of service.’”
PolyMet and NorthRange’s arguments to the contrary, Moore wrote, were based on an “overly circumscribed reading” of MAPA.
“Concluding that the statute is ‘silent on a matter of procedure’... suggests that the Legislature has set forth no intent regarding that matter. But the Legislature has stated its intent on the precise issue of whom can be served– the parties themselves, whether or not they are represented by counsel,” Moore wrote.
“Moreover, it is unclear why the Minnesota Administrative Procedure Act would need to specify how to serve a corporate entity for purposes of judicial review of agency decisions when other statutes already explicitly and broadly address that service issue,” he added.
The ruling follows close on the heels of the Army Corps of Engineers’ revocation of the NorthMet project’s Clean Water Act permit. Officials with the Corps found that NewRange and PolyMet had not adequately shown that waters protected by treaties with some of northern Minnesota’s Native American tribes would not be adversely impacted by the mine.
The Minnesota Center for Environmental Advocacy, one of the environmental groups appealing the permit, issued a celebratory statement Wednesday morning, calling the decision “yet another legal defeat for the PolyMet proposal” and trumpeting other victories by opponents of the mine, including the Army Corps’ permit revocation, last year’s Court of Appeals reversal of the mine’s water permit and the Minnesota Supreme Court’s 2021 reversal of PolyMet’s Permit to Mine.
“PolyMet has, yet again, failed to limit Minnesota’s review of its flawed proposal– this time on narrow procedural grounds,” MCEA’s Northeast Minnesota program director, JT Haines, said in the statement. “We applaud this decision from the Supreme Court and look forward to a full review at the Court of Appeals.”
NewRange spokesman Bruce Richardson also issued a brief, matter-of-fact statement. "The court’s decision does not affect the validity of NewRange’s air permit or say anything about the environment. The air permit remains valid and protects Minnesota’s air quality," Richardson wrote. "The court's decision is based solely on required appeal procedures in litigation. The case now returns to the court of appeals where NewRange and the Minnesota Pollution Control Agency will defend the agency's thorough review of the project's air emissions and the decision-making process in issuing the permit."
The planned NorthMet mine is one of two Northern Minnesota copper-nickel mining projects that have drawn controversy in recent years, highlighting a divide within the state’s dominant Democratic Farmer-Labor Party between certain pro-mining labor interests and anti-mining environmental ones. NorthMet and the other mine, Twin Metals, were joined Wednesday by a third project proposed by British Virgin Islands-based company Talon Metals, which submitted an environmental assessment worksheet to state regulators Wednesday morning.
The Talon Metals mine near Tamarack, Minnesota would be the southernmost of the three proposed projects, further away from the popular Boundary Waters recreation area. Perceived threats to the Boundary Waters by the other two mines are among several issues animating environmental and outdoors groups in opposition to the prior two mines.
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