SAINT PAUL, Minn. (CN) — The planners of a controversial northern Minnesota mining project made a brief appearance in Minnesota’s Court of Appeals Thursday morning, seeking to put to rest a challenge to state environmental rules that currently permit their proposed mine.
Before a three-judge panel including Judges Randall Slieter and Theodora Gaitas and Senior Judge Michael Kirk, attorneys for the Twin Metals copper/nickel mining project sought to challenge a district court order requiring the state’s Department of Natural Resources to re-evaluate a rule preventing mining within a quarter-mile range of the state’s Boundary Waters wilderness.
Northeastern Minnesotans for Wilderness, an environmental group affiliated with the Friends of the Boundary Waters Wilderness, had filed the suit in an effort to put a halt to the proposed Twin Metals copper/nickel mining project. The group argued that the rule, written in 1993, didn’t go far enough to reflect changing understandings of water pollution spread. They argue that areas in the Rainy River watershed — including the areas where Twin Metals holds mining leases — should be included in the agency’s mining prohibition.
At arguments, Twin Metals attorney John Kavinga of Minneapolis firm Larkin Hoffman argued that the environmentalist group didn’t have standing to bring its challenge under the Minnesota Environmental Rights Act.
“If anyone can bring a merit claim at any time, regardless of whether they’ve suffered an individualized harm…. This court would open a floodgate,” he said.
Arguing for the environmentalists, Heather McElroy of Minneapolis firm Ciresi Conlin pointed to the text of the statute, which says that “any natural person residing within the state,” alongside government divisions and other legal entities, may bring civil actions to challenge environmental rules.
“Twin metals doesn’t contest that NMW is such an organisation, and standing can be granted on that ground alone,” she said.
“Of course, ultimately the respondent needs to allege, and prove, damage to the Boundary Waters. But that’s a merits issue,” she continued. “That’s frankly the point of MERA, is that standing had been a hurdle in environmental cases. You had to prove a nuisance.”
Kavinga didn’t concede those points, but gestured toward a preemption argument when Judge Gaitas brought them up.
“If that’s the case, there’d be constitutional separation of powers that would render the statute unconstitutional,” he said.
The panel, all appointed by Democratic governors, peppered each side with questions about what conferred standing under MERA, citing other Minnesota cases where statutory standing came into play.
“How do you get around the League of Women Voters case?” Kirk asked of Kavinga, citing a 2012 case in which the League and other groups sought to remove a voter-ID ballot question without pleading an injury-in-fact.
While the League’s challenge failed, the Supreme Court also denied intervention to an outside group seeking to oppose it because its interest as an advocate for the ballot question was insufficient to confer standing.
“In the League of Women Voters case, we had an actual injury,” Kavinga replied. “We have a rule that has been in place for decades, and there’s a hypothetical concern, on the part of the plaintiffs, that a mine could cause damages,” he said.
That raised questions of ripeness, he argued, in addition to the issue of whether the plaintiffs could plead that they’d been or would be harmed.
Speaking after the hearing, McElroy elaborated on the case and her arguments.
“That’s something that is just very unique about the Minnesota ERA, that it really does place the responsibility and the duty on each of us as Minnesotans to protect Minnesota’s natural resources,” she said.
McElroy didn’t give much credence to Kavinga’s separation-of-powers point, and said that Twin Metals’ arguments had been “a moving target.”
“I think today we saw more of a shift into other constitutional principles, like ripeness, general principles of justiciability,” she said. “We felt very happy that the panel still seemed to understand what the main cases were that support a broad grant of statutory standing.”
Standing, she said, was the only issue out of eight on which Twin Metals was granted review of the district court’s order. As in the case of the nearby NorthMet mining project, the Twin Metals mine likely faces a lengthy legal gamut before it can begin construction. Twin Metals was formed in 2010; the NorthMet project, whose permits remain in jeopardy, started in 2006.
Public comment for the DNR’s rule is open through December, in accordance with the district court’s order.
University of Minnesota law professor Alex Klass agreed that the miners’ arguments were thin.
“The judges were fairly skeptical of Twin Metals’ arguments in the case. Doesn’t mean that they’re necessarily going to lose, but I didn’t hear a lot of support for that position,” she said. “I don’t want to make any predictions, but no, based on 50 years of cases interpreting MERA, they don’t have a lot of legal support for their arguments.”
While many other states allow for statutory standing, she said, MERA is relatively unique among environmental laws. The law, enacted in 1971, “serves as kind of a codification… a statutory reflection of the public-trust doctrine.”
Representatives for Twin Metals declined to comment on the case.
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