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Minnesota high court hears bid to throw out mine permits

Opponents of the NorthMet mine project argue state regulators attempted an end run around the public to get the permits approved.

ST. PAUL, Minn. (CN) — The latest dispute over a controversial Minnesota mining project made its way to the state’s top court Wednesday morning, where the Minnesota Pollution Control Agency defended its permitting process against allegations that it worked to conceal federal regulators’ concerns from the public. 

At issue are Clean Water Act permits for PolyMet Mining’s planned NorthMet mine near the North Shore of Lake Superior. The MPCA first issued draft CWA permits for the open-pit mine, which would extract copper, nickel, cobalt and other valuable metals, in 2018. Those and other permits have been locked in legal battles ever since, with environmental advocates and local Native American bands arguing the permits don’t adequately protect nearby waterways. 

While the environmental impacts of the mine loomed in the background of Wednesday’s hearing, arguments focused on procedural issues.

Attorneys Paula Maccabee, Evan Nelson and Matthew Murdock – representing the environmental groups WaterLegacy and Friends of the Boundary Waters Wilderness and the Fond du Lac Band of Lake Superior Chippewa, respectively – argued that MPCA had improperly deprived the public of access to comments made by Environmental Protection Agency staff on the permits by asking the agency to hold off until the end of a public comment period. 

“The MPCA knew that it was required to respond to all written comments, its responses would be public, and the public would find out,” Maccabee, who is representing WaterLegacy, told the court. “The court should not adopt a rule of law that lets MPCA get away with this.” 

While the comments were never published, Maccabee said, the state regulator should not have tried to avoid public scrutiny in the first place. “As a result of the Freedom of Information Act, we have the document, and the EPA says that the permit would… violate the Clean Water Act,” she said. 

She added, “If the MPCA had been forced to respond to the EPA’s comments… the petitioners may have prevailed, and we would have had a stronger permit that protects Minnesotans'’ health.” 

Nelson said reopening the case would clear the way for President Joe Biden’s EPA to make its own comments. “We know they want to. We know they’re on their way,” he said. 

Murdock echoed his colleagues but also took a different tack on behalf of the tribe, arguing that while the MPCA may have found the mine’s water protections adequate, they didn’t pass muster under rules protecting tribal lands for subsistence fishing. Upstream contamination, he said, risked violating the band’s treaty rights. 

Arguing for the MPCA, attorney Bryson Smith of the firm Holland & Hart said that the district court had “squarely rejected” the idea that the EPA was cut out of the process.

“As the district court actually found, PCA worked hand in glove with EPA,” he said.

The draft comments, written by EPA staffers, were never submitted, and Smith argued that passing over those drafts could not be considered a procedural issue. He urged the court to reverse the decision of the Minnesota Court of Appeals, which found in favor of the mine’s opponents on the EPA-comment issue in January but sided with PolyMet and MPCA on several other issues. 

PolyMet’s attorney Jay Johnson concurred with Smith.

“The District Court’s findings are still that EPA chose not to comment, and that EPA had 45 additional days to look at a more revised version of the permit, and then 15 days after that to look at the permit again. And it chose not to comment,” he said. 

Whether or not MPCA was trying to dodge bad press, Johnson said, “It’s not the EPA’s obligation to tell the public what it’s thinking.” 

CWA permits are not the only issues facing the embattled PolyMet project. The project’s permit to mine, issued by the Minnesota Department of Natural Resources, is awaiting a contested-case hearing ordered by the Minnesota Supreme Court in 2021. The EPA also recommended that the Army Corps of Engineers decline to reissue a federal wetlands-destruction permit in May, though the Corps has not yet made a decision on that permit. 

PolyMet is one of two controversial projects slated to mine deposits in northern Minnesota, once the center of the state’s iron ore industry. The other, the Twin Metals mine near Ely, also faces opposition from the Biden administration because of its proximity to the Boundary Waters Canoe Area Wilderness. The Department of the Interior revoked the leases which the project relied on in the waning days of the Obama administration; they were reinstated under the Trump administration, then canceled again in January this year.

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