REGIONAL— The proposed NorthMet copper-nickel mine near Hoyt Lakes has suffered another body blow, this time delivered by the state’s Supreme Court, which has reversed the proposed mine’s state-issued water discharge permit in a decision that could have implications for state regulatory agencies in the future.
The latest ruling comes on top of the recent decision by the U.S. Army Corps of Engineers to rescind the proposed mine’s wetlands permit.
The mine had appeared ready to move forward back in 2018, when it received the last of its operating permits, but legal challenges to most of its key permits have been largely successful and have put the future of the proposed mining operation in serious doubt.
The courtroom deliberations have also revealed questionable decision-making by the Minnesota Pollution Control Agency, which appears to have bent over backward at times to accommodate the proposed mine, rather than serve as a watchdog and regulator.
That was a point made by the high court in its decision, issued Wednesday, which faulted the MPCA in reversing the permit.
“We conclude there are danger signals suggesting that the MPCA did not take a hard look at whether the permit complies with the Clean Water Act (CWA) and that the MPCA did not genuinely engage in reasoned decision-making in dealing with concerns that were raised by the EPA,” wrote the judges in their ruling. “We therefore conclude that the action taken by the MPCA in issuing the permit was arbitrary and capricious and remand to the MPCA for further proceedings.”
The high court took its action based on an appeal by a coalition of environmental groups and the Fond du Lac Band who had found fault with an earlier ruling by the Court of Appeals that was more favorable to the MPCA and PolyMet Mining, which proposes to open the NorthMet mine. PolyMet began its review and permitting process for the mine back in 2005 but has faced a gauntlet of environmental and legal hurdles ever since. PolyMet has since formed a joint venture with Teck Resources, known as New Range Copper, which now owns the proposed mine plan.
In reversing the key permit, the high court left unresolved other issues surrounding the permit, which will now need to be decided should the MPCA and New Range Copper begin the process of reviewing and eventually re-issuing the water discharge permit. That process could take years and could force major changes in the mine’s design and operational plan.
While the court left some issues unresolved, it did state that the permit issued by the MPCA violates state groundwater rules and indicated that will need to be taken into consideration if the MPCA and New Range Copper opt to begin the permitting process over again.
The Supreme Court also made it clear that the state’s top justices share concerns that copper-nickel mining, extracted from sulfide ore, poses unique risks to Minnesota’s water quality. “As we explained in a prior appeal involving different permits, the project ‘brings with it potential environmental impacts unique to this type of mining,” wrote the court. “In particular, the mine waste generated by extracting and processing sulfide ore has the potential to release acid rock drainage, which occurs if either the sulfide ore or waste rock is exposed to oxygen or water. If this exposure takes place, the sulfide ore and waste rock would release toxic metals and sulfate that could seep into nearby surface waters and groundwaters.’”
Reaction is swift
Environmental plaintiffs in the case were elated by Wednesday’s ruling, and not just over the impact to the mine proposal itself. “It’s not only a good decision for clean water, but provided the opportunity, which the court took advantage of, to set a high standard for state agencies, which should have long-term benefit,” said Paula Maccabee, legal counsel for Duluth-based Water Legacy. “It’s highly gratifying to not only make a good effort to protect water, but in trying and succeeding in setting a higher standard for regulatory integrity.”
The decision by the state’s MPCA to pressure the Trump-era EPA to nix its planned written comments taking issue with parts of the water discharge permit played a role in the permit’s undoing.
“Today the Minnesota Supreme Court recognized that what our state agencies do during permit review processes matters,” stated Joy Anderson, a staff attorney at the Minnesota Center for Environmental Advocacy. “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. This decision is important not only for the PolyMet case, but to ensure that when our state agencies make any decision that affects Minnesotans, they do so openly and fairly.”
Maccabee said the decision proves an adage she’s long kept in mind when it comes to environmental regulation. “The short cut is always the longest way around,” she said.
A future for NorthMet?
The road ahead is certain to be long and challenging if New Range Copper hopes to resolve the plethora of weighty issues and challenges the string of successful lawsuits have created.
“Each of these permits has its own set of factual issues,” noted Maccabee, “and I think resolving any of these permits will be time-consuming. But the major ones, like the permit to mine or the water discharge permit, present different and significant issues and resolving them will not happen overnight, if it happens at all.”
While making it clear she isn’t speaking for New Range, Maccabee said the future must look pretty daunting. “Polymet has not said they’re ready to throw in the towel, but so many aspects of their permits were contrary to science and the law, that I hope they’re thinking about what they need to do differently or don’t do it at all.”