Serving Northern St. Louis County, Minnesota

Court of Appeals puts PolyMet permit on hold

Tuesday ruling is a major victory for environmental groups fighting the proposed mine

Marshall Helmberger
Posted 8/6/19

REGIONAL— The Minnesota Court of Appeals has ordered a stay on PolyMet Mining’s water discharge permit pending further action by the courts. The order, issued Tuesday, is a major victory for …

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Court of Appeals puts PolyMet permit on hold

Tuesday ruling is a major victory for environmental groups fighting the proposed mine

Posted

REGIONAL— The Minnesota Court of Appeals has ordered a stay on PolyMet Mining’s water discharge permit pending further action by the courts. The order, issued Tuesday, is a major victory for environmental groups and the Fond du Lac Band, who had sought the stay while the courts investigate a host of irregularities in the process used by the Minnesota Pollution Control Agency in approving the permit, known as an NPDES permit.

The Court of Appeals had referred those questions to the Ramsey County District Court back in June after determining that Duluth-based Water Legacy, the Fond du Lac Band, and other environmental organizations had presented sufficient evidence that the process may have been undermined by politics and other intrigue to warrant further fact-finding by a district court.

“On the unique facts of this appeal, we conclude that staying the permit is warranted,” wrote the three-judge appellate court panel. “A substantial issue has been raised as to the regularity of the MPCA’s proceedings in granting the permit, and this court has ordered the exceptional remedy of a transfer to district court to hear and determine those irregularities.”

The decision, in effect, puts a key permit for PolyMet’s proposed copper-nickel mine near Hoyt Lakes on hold until further court action is completed. It’s unclear how long such court action might take, but it could well take several months.

“What this means is that the court has given us time to find the truth,” said Paula Maccabee, legal counsel for Water Legacy. “Not just a fragment of the truth, but the whole truth.”

The primary “truth” at issue is whether the MPCA acted improperly by asking the federal Environmental Protection Agency to withhold written comments on the draft NPDES permit for PolyMet and did so in order to keep the EPA’s concerns out of the administrative record. Appellate courts are required to limit their examination of the appropriateness of agency decisions to the facts and documents that are contained in the administrative record, so keeping critical comments out of that record could have given the MPCA an advantage in any court challenge.

The MPCA’s alleged actions were uncovered through a series of revelations, including a public records request by Water Legacy as well as statements from a retired EPA staff attorney who voiced concerns from whistleblowers inside the federal agency. A union representing EPA employees later leaked an email from the MPCA’s Shannon Lotthammer, which appeared to make the request that the EPA delay its submission of written comments.

Based on the revelations, the EPA’s Office of Inspector General has launched an investigation of the handling of the permit. Minnesota’s legislative auditor is also investigating the actions of state officials involved in the permitting process.

The court’s decision comes barely a week after nearly two dozen state legislators wrote Gov. Tim Walz asking for a stay of the permit while the court case proceeded. Walz had opted to let the Court of Appeals decide the matter, which it now has done.

Environmental groups hailed the court’s decision. “Today’s ruling is a victory for clean water and clean government,” said Chris Knopf, Executive Director of Friends of the Boundary Waters. “Evidence of a cover-up at the Minnesota Pollution Control Agency has been growing for some time and we applaud the Court of Appeals' decision to stay the permit until these matters can be investigated fully.”

Minnesota Center for Environmental Advocacy CEO Kathryn Hoffman, who spoke to Ely’s Tuesday Group this week, called it an important ruling. “This stay recognizes that the PolyMet mine should not be allowed to move forward while the court takes the time necessary to get to the bottom of what happened here, and what impacts the suppression of comments has had on the underlying permit.”

PolyMet officials and supporters of the project did not immediately respond to the court decision.

Meanwhile, the various parties to the case were set to appear in Ramsey County District Court on Wednesday to discuss the scheduling of further proceedings in the case. Maccabee said she planned to ask for full discovery to allow the parties to depose witnesses and subpoena documents. “There are a lot of important things we still don’t know and a lot of important documents we still don’t have,” said Maccabee. “The question is what does the court see as the appropriate level of discovery?”

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Scott Atwater

Nothing new, just the latest in a long history of delaying tactics. The victory is short lived because the permit approval is based on scientific study, due diligence, and fact.

Wednesday, August 7