ST. PAUL, Minn. (CN) — Minnesota’s Supreme Court dealt a serious blow Wednesday to an embattled copper-nickel mining project in the state’s northern reaches, reversing a state agency’s grant of a critical water-pollution permit.
The ruling is the latest in a series of setbacks to the proposed NorthMet mining project near Babbitt, Minnesota, which has faced heavy criticism and over a decade of litigation from environmentalists and local Native American tribes for its potential impacts on the Lake Superior watershed.
The court, partially reversing the state’s Court of Appeals, called for the Minnesota Pollution Control Agency to fix procedural issues in its grant of National Pollutant Discharge Elimination System and State Disposal System permits — required under the Clean Water Act for projects that could pollute nearby waterways — and to consider whether the permit’s grant of a variance for the pollution of unsaturated groundwater within a containment system was appropriate for the project.
In an opinion issued Wednesday morning, Judge Barry Anderson found that there were “danger signals” suggesting that the MPCA “did not take a hard look at whether the permit complies with the Clean Water Act” and “did not genuinely engage in reasoned decision-making in dealing with concerns that were raised by the EPA.”
Mine opponents have pointed to the MPCA’s requests that the Environmental Protection Agency refrain from making written comments during the permitting process as evidence of an effort to keep issues with the mine out of the public eye. In the court’s opinion, Anderson wrote that the “MPCA did not follow the typical process here in issuing a permit to PolyMet” — the name of the mine project’s owner at the time of permitting, since changed to NewRange Copper Nickel — and “did not make a thorough record of the communications between the agencies” despite a higher-than-usual amount of interaction with the EPA on the topic of the permit.
“Even if an irregular procedure of an agency does not rise to the level of an unlawful procedure … an irregularity in procedure may constitute a ‘danger signal’ that may be considered in determining whether an agency decision is ‘arbitrary or capricious,’” Anderson wrote. A district court and the Court of Appeals’ definitions of “irregularities in procedure,” he found, were too narrow, and the MPCA’s request that the EPA delay its written comments on a draft permit should have qualified. The noninclusion of the EPA’s concerns with the draft permit in the record, therefore, was a danger signal.
Because those concerns included substantial disagreements between the two agencies on several issues, including the possibility of conducting a required statistical analysis for mercury and of including water quality-based effluent limitations (WQBELS) in the permit, Anderson found that the “arbitrary or capricious decision-making by the MPCA directly frustrates our ability to resolve the substantive claims about the permit decision on the administrative record the MPCA made” and that the environmental groups and tribes appealing the permits had been prejudiced by the decision.
While the court declined to require the MPCA to reopen its public comment period on the permit, it required the agency to give the EPA a fresh opportunity to provide written comments on the permit and to respond to those comments, amending the permit if necessary to comply with any need for WQBELs, the Clean Water Act and any state and tribal water quality standards.
The Minnesota Center for Environmental Advocacy, one of the environmental groups which appealed the permit, issued a statement celebrating the decision. “This precedent-setting win makes clear that state agencies cannot selectively shield information gathered during public processes to hide criticism of a proposal,” the statement said. “In addition, the decision concludes that PolyMet’s plan to allow groundwater at the mine facility to become polluted violates Minnesota rules.”
Friends of the Boundary Waters Wilderness executive director Chris Knopf said in the statement, “For almost two decades, we’ve seen PolyMet attempt to skirt regulations and violate the law in an effort to force through its mine. It’s unfortunate that it took five years to hold MPCA accountable to its job, and to protect human health and the environment.”
The permitting tide has turned against the Minnesota mining project this year, with the Army Corps of Engineers revoking another of NorthMet’s Clean Water Act permits in June. The project is also awaiting a contested-case hearing on its permit to mine, ordered by the Minnesota Supreme Court in 2021. Another controversial project in the area, the Twin Metals project near Ely, recently had its mineral leases revoked for a second time by the Bureau of Land Management after they were reinstated under the Trump administration.
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