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High court hears arguments in PolyMet case

Justices pepper attorneys on both sides with questions and doubts

Marshall Helmberger
Posted 11/30/22

REGIONAL— Minnesota’s highest court heard arguments Wednesday that may or may not send a key permit for the proposed PolyMet mine back to square one. While the state’s nine top …

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High court hears arguments in PolyMet case

Justices pepper attorneys on both sides with questions and doubts

Posted

REGIONAL— Minnesota’s highest court heard arguments Wednesday that may or may not send a key permit for the proposed PolyMet mine back to square one. While the state’s nine top justices expressed some reluctance to do that, they indicated strong concern over the unusual actions of the state’s Pollution Control Agency when the agency asked the Environmental Protection Agency to delay commenting on the controversial permit. Instead, justices suggested a lesser remand that might offer the EPA a chance to comment on the final permit without reopening the entire permit for reissuance.
Their ultimate decision on the important case likely won’t be known for months.
The Minnesota Center for Environmental Advocacy, Water Legacy, and the Fond du Lac Band had asked the Supreme Court to take a second look at an appellate ruling issued last January, which had provided a mixed verdict on PolyMet’s water discharge permit. Environmental plaintiffs had argued that the MPCA’s efforts to discourage the Environmental Protection Agency from issuing written comments on PolyMet’s draft water discharge permit was an intentional effort to avoid negative publicity and to keep critical comments out of the administrative record. Lower courts had agreed that the MPCA had sought to avoid public scrutiny surrounding the issuance of the permit and concerns that the EPA had expressed about its compliance with the Clean Water Act. Yet, the lower courts had determined that the MPCA had not broken any law in doing so and, therefore, its actions did not constitute a procedural irregularity that could lead to reversal of the permit.
The Supreme Court agreed to take another look at that issue and others addressed by the Court of Appeals. In seeking Supreme Court review, the environmental plaintiffs were joined by several “friends of the court,” including by the federal union that represents EPA workers, two Minnesota-based administrative law judges, the Minnesota Center on Government Information, and a Minnesota well owners association.
Should the high court reverse the lower court ruling, it could well wipe away PolyMet’s water discharge permit, known as an NPDES permit, issued under the auspices of the federal Clean Water Act. That could require the company restart the lengthy permitting process, which would include additional public and agency comment.
Justices peppered the attorneys for the various parties with questions throughout the hearing, which went slightly over an hour, occasionally expressing doubt about the attorneys claims on both sides of the issue. The three environmental litigants each offered arguments in support of their position, while attorneys for the MPCA and PolyMet countered their views.
The proposed PolyMet copper-nickel mine has been mired in litigation since the MPCA and the Department of Natural Resources issued a number of permits for the project beginning several years ago.
The water discharge permit is just one of several permits that have been suspended by the courts since they were issued.
In addition to a second look at the MPCA’s actions regarding EPA comments, the high court will consider whether the Court of Appeals erred when it determined that the PolyMet permit did not require water-quality based effluent limits.
Meanwhile, a third issue stemming from last January’s appellate ruling was remanded back to the MPCA for further deliberations on whether groundwater contamination anticipated from the PolyMet mine is subject to regulation under the Clean Water Act.

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