Minnesota Supreme Court deals another blow to proposed PolyMet mine, criticizes MPCA actions

The state’s highest court has dealt another blow to a proposed copper-nickel mine in northern Minnesota.

Wednesday, the Minnesota Supreme Court handed down its ruling in the PolyMet water quality permit case.

In the latest chapter of the long-running saga, the high court determined that the Minnesota Pollution Control Agency (MPCA) may not have properly considered whether the permit it issued actually complies with the federal Clean Water Act, nor did the agency genuinely deal with concerns from the federal Environmental Protection Agency (EPA).

In making that determination, the court sent the process back to the MPCA for further proceedings to address those concerns.

The ruling is a win for environmental groups and the Fond du Lac Band of Lake Superior Chippewa, who collectively sued to cancel the project permit. It’s one of three major permits issued to PolyMet in 2018 but legal challenges have halted them all, preventing the company from building its proposed mine — the first copper-nickel mine in the state — six miles south of Babbitt and re-use an old iron ore processing plant six miles north of Hoyt Lakes.

“Today the Minnesota Supreme Court recognized that what our state agencies do during permit review processes matters,” Joy Anderson, a senior staff attorney for the Minnesota Center for Environmental Advocacy, said Wednesday. “Unfortunately in the case of PolyMet, our state MPCA violated the public’s trust, and state law, when it suppressed crucial scientific concerns about the water permit.”

NewRange Copper Nickel, PolyMet’s new name, released a statement saying it’s looking forward to working with the proper authorities to address the ruling.

“NewRange is confident that the additional proceedings will confirm the project protects water quality for all, and welcomes working with stakeholders on the permit,” the company said in part. “As designed, the NorthMet Project will employ the most advanced and protective water treatment technology of any mining project in the history of the State of Minnesota.”

In their opinion, the justices had some pointed comments for state environmental officials, noting the MPCA knew the legal battle it would face for years over the project but saying the agency still failed to “adequately document” everything, such as the EPA’s concerns.

Opponents of the project have said the MPCA tried to suppress the EPA’s concerns by getting the EPA to not submit written comments during an open public comment period.

“The motivation of the MPCA — to avoid public awareness and scrutiny of the EPA’s concerns because of the intense public interest in the NorthMet project — is contrary to the express ‘purposes of the Administrative Procedure Act’ to increase transparency and ‘public access to governmental information,'” Justice G. Barry Anderson wrote in the court’s majority opinion.

The justices added that the MPCA seemed motivated to avoid public scrutiny and exercised “its will and not its judgment” and, therefore, they deemed the agency’s permit decision to be “arbitrary and capricious.”

But the justices also went a bit farther with their comments on the MPCA.

In a concurring opinion, five other justices wrote a separate note “to emphasize the importance of the Fond du Lac Band’s water quality standards, and to highlight the serious disservice that the Minnesota Pollution Control Agency (MPCA) and Environmental Protection Agency (EPA) did to the Band” and to emphasize “the seriousness of the MPCA’s failure to create a record.”

The justices noted the tribal nation takes on the same administrative authority as a state would and, given the band’s reservation is downstream from the NorthMet project, the MPCA has to ensure compliance with the Band’s standards.

“If the MPCA approved a permit that violates the Band’s water quality standards — which seems possible given the inadequate record before us — then the MPCA failed to treat the Band with appropriate solicitude under the law and approved a permit that threatens the Band’s cultural traditions. For the more than 4,000 members of the Fond du Lac Band, natural resource rights are more than just a property right, they are a way of life,” the justices wrote.

“By failing to make a record of how the agencies resolved the inadequacies that the EPA identified in the draft permit, the MPCA continued this country’s centuries-long history of threatening tribal resources with political disregard of tribal rights,” they added.

5 EYEWITNESS NEWS has reached out to the MPCA for comment on the ruling and will update this story if a statement is received.