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High court reverses on PolyMet air permit

Sends portion of case back to Court of Appeals for further proceedings

Marshall Helmberger
Posted 2/24/21

REGIONAL— The state’s Supreme Court has reversed a lower court ruling from last year that had sent a PolyMet air emissions permit back to the Minnesota Pollution Control Agency for …

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High court reverses on PolyMet air permit

Sends portion of case back to Court of Appeals for further proceedings

Posted

REGIONAL— The state’s Supreme Court has reversed a lower court ruling from last year that had sent a PolyMet air emissions permit back to the Minnesota Pollution Control Agency for further review. It’s a partial victory for both PolyMet Mining and the MPCA, both of which had appealed the lower court ruling, issued in March 2020. PolyMet hopes to open the state’s first copper-nickel mine, near Hoyt Lakes, but has run into a series of legal challenges to that effort.
At the same time, this week’s ruling remands a related issue back to the Court of Appeals for additional review.
The decision, written by Justice Paul Thissen, concludes that the MPCA was not required under federal law to investigate claims by environmental groups and the Fond du Lac Band that PolyMet was engaging in “sham permitting” by seeking permission for an operation that was far smaller than what the company actually intended to build.
The Minnesota Court of Appeals had largely agreed with the claims of environmentalists and the tribe, and had sent the case back to the MPCA for new information, particularly a 43-101 technical report. That report, created by an independent consultant on behalf of PolyMet in March of 2018, included updated financial projections which showed that PolyMet’s proposed NorthMet mine was only marginally profitable at the 32,000 tons-per-day (tpd) scale the company had proposed from early on. In that same report, PolyMet had asked the consultant to consider substantially larger mining operations, including a 59,000 tpd scenario and a 118,000 tpd alternative, both of which indicated higher returns on investment.
Environmental critics of the mine have argued since the release of that report that the company intends to build a much larger operation that would have significantly greater environmental impacts than were considered in the environmental review and subsequent permitting process.
But the Supreme Court determined that federal regulations do not require the MPCA to investigate the sham permitting claims. Instead, the high court found that the regulations give the federal Environmental Protection Agency the authority to investigate such claims after the fact, and potentially levy substantial civil fines and penalties for companies that obtain permits through deceit. The decision means the MPCA won’t be required to take a second look at those concerns.
At the same time, the high court remanded a second claim back to the Court of Appeals for further consideration. During their initial appeal, environmental groups and Fond du Lac had argued that PolyMet had failed to reveal all relevant facts related to the permit and had “knowingly submitted false or misleading information to the agency.”
But the Court of Apeals never specifically addressed those claims and the Supreme Court referred those questions back to the lower court for further examination of those claims.
On a minor note, the high court also rejected a motion by the MPCA and PolyMet to strike certain documents from the court record. But the high court said the request was no longer at issue and so left the record as is.
PolyMet officials reacted favorably to this week’s ruling. “This decision is another big win and a major step forward in the defense of our air permit,” said company President and CEO Jon Cherry. “We strongly believe that the facts and the law are on our side, and we are pleased that the court agreed with us on the law.”
Cherry said he’s confident that PolyMet and the MPCA will prevail on the remaining issues that the high court remanded to the Court of Appeals.
Environmental plaintiffs offered mixed opinion on the decision. “Today’s ruling underscores that the entire process by which PolyMet obtained its permits in 2018 may have been deceptive and allows us to make this case to the Minnesota Court of Appeals,” said Kathryn Hoffman, CEO of the Minnesota Center for Environmental Advocacy. “PolyMet has engaged in a bait-and-switch scheme to avoid air pollution standards, and we are glad that the Supreme Court ruling allows us to make this case.”
Chris Knopf, executive director of Friends of the Boundary Waters, said the case demonstrates that the state’s regulatory process is flawed. “The outright resistance from regulatory agencies to do their jobs shows that the system is broken and simply unable to oversee copper-sulfide mining,” he said. “This underscores the need for legislative action to pass a Prove It First law and protect Minnesota’s waters.”
While a partial victory for PolyMet, the decision is a long way from clearing a path for the company to begin construction on its proposed mine.
Three other permits, including the permit to mine, issued to the company by MPCA and the Minnesota Department of Natural Resources have been rejected by the Court of Appeals, with high court decisions on those matters still pending. The company’s water pollution permit, also known as a National Pollution Discharge Elimination System (NPDES) permit, also remains suspended.
In addition, the Section 404 wetlands destruction permit issued by the Army Corps of Engineers has been appealed and remains in federal district court.

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Steve Jacobson

Time to invest in a moving van company!

Thursday, February 25