America’s federal courts are supposed to be the great equalizer. While the costs of litigation can certainly limit the ability of some to have their day in court, the federal judiciary is, for many, the one guarantor of equal protection under the law— the one place where average Americans can stand equal with powerful corporations or an arbitrary or abusive government agency.
But what if only one side of a dispute had access to the courts? It’s not an academic question. It’s a reality that is playing out right now in the U.S. Senate, where Sen. Tina Smith has introduced a rider to an unrelated, must-pass defense bill that is intended to deny environmental groups the right to challenge the proposed PolyMet land exchange in federal court.
Whether you support the land exchange or not, it’s hard to argue that short-circuiting a long-established decision-making process is reasonable or wise. It’s even more astonishing that Sen. Smith, who has the backing of Sen. Amy Klobuchar, and Rep. Rick Nolan in the House, would deny only one side their rights under the law.
PolyMet has always had the right to use the courts to defend their position, just as Twin Metals had the right to sue over the Obama administration’s decision to cancel its mineral leases near Ely.
Indeed, Forest Service officials, in approving the land exchange, acknowledged it was the threat of litigation by PolyMet that prompted them to give the go-ahead for the exchange. The Forest Service is well aware of the risks of a sulfide mine in the heart of the Superior National Forest. But officials argued at the time that they were reluctant to test the provisions of the century-old Weeks Act in court. The federal land that the Forest Service would hand over to PolyMet was obtained under this law, passed in 1911. Among other things, the law prohibited strip mining on any lands acquired under the act, so this federal law would, in theory, have prevented PolyMet from pursuing the open pit mine they have proposed.
PolyMet officials had indicated to the Forest Service that they would likely challenge that law in federal court. While the law may seem clear, Forest Service officials well understood that federal disputes are often more complex than they may appear at first glance. Rather than risk the courts dismantling the Weeks Act’s protection against strip mining, the Forest Service pursued a land exchange. It was a calculated decision designed to minimize the risk of even greater harm.
In this instance, the mere threat of litigation provided PolyMet effective leverage in its efforts to influence the decision-making of a federal agency that otherwise might well have resisted a sulfide mine, given its risks.
But now that environmental groups want their day in court, to examine whether the exchange meets the provisions of the Federal Land Policy and Management Act (FLPMA), members of Congress are trying to deny them access to the same legal process that PolyMet used, in effect, to get its way.
Will Sen. Smith and her allies in Congress now try to prevent environmentalists from challenging the Trump administration’s decision to reinstate mineral leases for Twin Metals? That lawsuit is expected to be filed later this summer, so time will tell.
Sen. Smith argues that her measure won’t impact the environmental review or permitting process. That’s true, and also entirely irrelevant. The lawsuit filed by environmentalists focuses solely on whether Americans are getting equal value for the federal lands they propose to hand over to PolyMet. It’s a complex question, one that neither Sen. Smith nor the rest of the state’s congressional delegation knows the answer to. It’s the kind of question routinely answered through the in-depth fact-finding undertaken by federal district courts.
By attempting to deny such an investigation, Minnesota’s junior senator is undermining a federal system that was designed with checks and balances for a reason. America has been known around the world as a place that governs through a process guided by the rule of law, in this case, by the provisions of the FLPMA. And access to the courts is part of that process. If Sen. Smith believes the FLPMA should be revised to remove access to the courts for those who object to a government decision, she should propose it and let the political process decide. But to leave a law in place, and to arbitrarily set aside its provisions on a case-by-case basis based solely on political considerations, is to turn the rule of law into the law of the jungle. Sen. Smith may see a short-term political benefit to her actions (votes on the Iron Range) but by eroding public confidence in the fairness of the federal process, she risks doing much harm in the longer run.