DNR appeals court ruling against PolyMet mine
The Minnesota Department of Natural Resources on Wednesday asked the state Supreme Court to overturn a lower court decision that rejected some of the most important permits for the proposed PolyMet copper-nickel mine.
The agency said in a statement that last month's decision from the Minnesota Court of Appeals could affect future mining proposals, the state's currently operating iron mines and a wide range of other state permit decisions. The agency called the decision “a significant departure from the DNR’s long-standing application of state mining law.”
The case is one of several pending before the courts in the long-running battle over what would be Minnesota’s first copper-nickel mine. PolyMet filed a similar petition with the Supreme Court on Tuesday.
The Court of Appeals ruled that the DNR erred when it declined to order a trial-like proceeding before a neutral administrative law judge known as a “contested case hearing” to gather more information on the potential environmental impacts from the mine. So the court sent PolyMet’s permit to mine and two dam safety permits back to the agency with an order to hold the potentially lengthy proceeding before deciding whether to reissue the permits.
PolyMet’s opponents include the Minnesota Center for Environmental Advocacy, WaterLegacy and the Fond du Lac Band of Lake Superior Chippewa. They hope to use a contested case hearing to argue that the project’s environmental and financial safeguards are inadequate to protect against acid mine drainage or a waste pond dam collapse.
"The Minnesota Court of Appeals ruling that struck down PolyMet’s permits was well-reasoned, and we believe it will stand," Kathryn Hoffman, CEO of the center, said in a statement. “The Court properly concluded that the risks of PolyMet’s proposal are too important not to be fully evaluated by an independent judge – a request DNR improperly denied during the permitting process."
But the company contends it has proven the project’s safety by navigating the most comprehensive environmental review and permitting process in Minnesota history. It says the project between Babbitt and Hoyt Lakes in northeastern Minnesota will create nearly 360 long-term jobs.
At issue in the DNR and PolyMet appeals is how to properly interpret a state statute that governs when the agency should order contested case hearings, and how much discretion it has to determine when they are or aren’t required.
The DNR said in its announcement that it's not questioning the value of contested case hearings when they would help the agency to resolve a disputed issue of fact.
“However, in this case, we believe the DNR thoroughly considered all of the disputed factual issues, produced substantial findings documenting the basis of our conclusions, and appropriately concluded that holding a hearing would not resolve these disputes,” the agency said.
PolyMet’s attorneys wrote in their petition that if the Court of Appeals’ decision stands, “permitting and environmental review throughout the state will become less predictable and more burdensome.”
Jon Cherry, PolyMet’s CEO and president, said in a statement that the appeals court “effectively opened the door to an unpredictable loop of review and additional litigation.”
If the Minnesota Supreme Court decides to hear the case, the justices would lay out a schedule for filing briefs and holding oral arguments. They could also let the Court of Appeals decision stand.
Senate Majority Leader Paul Gazelka, R-Nisswa, issued the following statement Wednesday:
"This appeal by Governor Walz and the DNR further emphasizes the bipartisan effort to move the Polymet project in northern Minnesota that already meets or exceeds all state and federal standards, go forward," Gazelka said. "The recent Court of Appeals decision has the potential to add surprisingly more regulatory precedent to an overly permitted industry. I expect the Supreme Court will rule quickly on the faulty rationale of the lower court ruling so that this safe, job-creating project, can finally begin."