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Thorny issues still on the table in PolyMet battle

As all sides claim a legal victory, high court ruling foretells years of continued wrangling

Marshall Helmberger
Posted 5/5/21

REGIONAL— Who really “won” in last week’s Supreme Court decision on the future of the proposed PolyMet mine? That remains an open question after all parties in the dispute …

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Thorny issues still on the table in PolyMet battle

As all sides claim a legal victory, high court ruling foretells years of continued wrangling

Posted

REGIONAL— Who really “won” in last week’s Supreme Court decision on the future of the proposed PolyMet mine? That remains an open question after all parties in the dispute claimed legal vindication when the high court issued its ruling on April 28.
Environmental groups hailed the decision, which they argue has wiped away PolyMet’s all-important permit to mine pending what is likely to be years of additional administrative process and legal wrangling.
Yet, officials from the Department of Natural Resources and PolyMet, contend that the decision keeps the existing permit intact, albeit suspended, while the parties hash out relatively minor matters before an administrative law judge. Those matters include an assessment of whether the use of bentonite clay is a practical solution for addressing issues surrounding PolyMet’s proposed tailings basin and the lack of a fixed term for the permit to mine.
“Despite the media narratives spun by opponents of our project, the Minnesota Supreme Court’s opinion ruled in PolyMet’s favor in six of the eight issues, including the most significant legal issue,” wrote PolyMet spokesperson Bruce Richardson in follow-up comments on last week’s ruling. “The claims of a ‘win’ by opponents of our project simply do not withstand scrutiny,” he added.
Meanwhile, in an email to supporters, Chris Knopf of Friends of the Boundary Waters, one of the environmental litigants in the case, called the decision “a huge victory.”
“The high court found that DNR failed in its oversight by allowing PolyMet to use a risky method to contain the enormous amount of acid mine drainage the mine would produce.  They also failed to set a fixed end date for mining to end, and for cleanup and reclaiming the land,” wrote Knopf. “PolyMet has no permit. If they want to move forward, they need to start over, they need to begin again,” Knopf concluded.
Knopf wasn’t alone in that assessment. Legal counsel for the groups opposing the mine said last week that PolyMet will need to reapply for its permit to mine, and that the application process will include a new opportunity for public comment and to raise issues based on new information that the high court didn’t directly address in its recent ruling.
The DNR sees it differently. “The Minnesota Supreme Court did not ‘reverse the permit to mine’ in the sense of voiding the current permit and requiring a new application,” said DNR Assistant Commissioner Barb Naramore. “The court ordered a contested case hearing on whether the use of bentonite in the tailings basin is a ‘practical and workable’ reclamation technique. The permit to mine will remain suspended during the contested case hearing on that issue.”
While the DNR may eventually modify the permit based on information learned through the contested case hearing, which would be conducted in front of an administrative law judge, Naramore said the permit could simply be modified based on that new information.
“No new permit application is required,” she said.
That’s not at all clear according to attorneys on the other side. What is clear is that under state law the Supreme Court had the option to uphold the DNR’s decisions, to remand them to the agency for further analysis, or to reverse or modify them. On the issue of a fixed term, the court was straightforward: “We further conclude that the court of appeals was correct in reversing the decision to grant the permit to mine because the DNR erred by issuing the permit without an appropriate fixed term,” the judges wrote.  
Eye of the beholder
It’s not the first time that parties in a legal dispute have found different ways to interpret a court ruling. In this case, said Ann Cohen, a former lawyer in the state attorney general’s office, who now represents the Minnesota Center for Environmental Advocacy, a win is really a matter of perspective.
“I suspect that if you’d asked PolyMet the day before the ruling what they would consider a win, they’d have said they could start mining,” said Cohen. “As it stands today, they don’t have a permit under which they could start their mine,” she said.
Yet Cohen and other environmental attorneys expressed surprise at the DNR’s position. “I think the DNR needs to look at its own rules,” said Cohen, noting that the DNR can’t issue a decision on a mining permit until after any required contested case hearings are completed. “I don’t know what the DNR thinks those words mean,” said Cohen. “Our understanding is that the DNR needs to make a new decision. That’s standard administrative law.”
And once that decision is made, critics of the decision will be free to begin a whole new round of legal challenges, a point that the Supreme Court made itself in its recent ruling on the case. And those challenges are almost certain to go well beyond the two issues that the Supreme Court ruled on last week and will likely bring the focus back to the legal sufficiency of the permit to mine, which was an issue that the court decided it did not need to settle in the current case.
As the court noted in a footnote in their written ruling: “Our decision today focuses primarily on the DNR’s decision to deny respondents’ petitions for a contested case hearing on the permit to mine. Because we conclude that the DNR must hold a contested case hearing on the bentonite amendment, we believe a decision on the legal sufficiency of the permits is premature.”
Which means the court didn’t really address the fundamental arguments of project critics, which center on the adequacy of the permit to protect the environment.
While the high court ruled in favor of the DNR’s authority to deny contested case hearings on several issues, the court made it clear that the DNR would be well served by taking a broader approach as it begins to take a fresh look at the permit to mine ,if only to bolster their case should the high court, as seems likely, eventually need to rule on the adequacy of the permit. The court noted that the “DNR has the authority to identify the issues and scope of the contested case hearing… and may decide to address issues raised by this appeal regarding the legal sufficiency of the permits.”
Issues may not be minor
Even if that fresh look is limited to the issue of bentonite and the permit’s lack of a finite term, the agency could still face a significant challenge, says Cohen. She notes that the DNR’s position on the use of bentonite was soundly criticized by the agency’s own hired experts. “They had so many experts telling them this plan was hinky and that they needed to get some proof that it would work,” said Cohen. “Instead, they proposed to let PolyMet move ahead and just experiment with the scheme.”
While the issue of the use of clay might seem a relatively minor matter, it’s an important one, says Knopf of the Friends. “The bentonite is the mechanism for controlling the acid drainage,” he said. “And here the DNR is essentially trying to let them build a plane while flying it. That seems to defy common sense.”
The far thornier issue, Cohen believes, is establishing a set term for the permit, which is the other issue on which the Supreme Court found for opponents of the mine. “That’s the DNR’s real dilemma,” said Cohen. “The DNR has no idea whatsoever when this facility will be able to be reclaimed. They can’t just pull a term out of wherever they can’t reach. There has to be an actual plan for reclamation and they have to have substantial evidence supporting their decision.”
While acknowledging the court’s reversal on the issue, the DNR’s Naramore defended the agency’s decision. “The DNR used a performance-based term, rather than a fixed date, because this is a straightforward manner to ensure that the permittee remains subject to the permit conditions until the DNR determines that all obligations have been met,” she said. “This has been the DNR’s long-standing approach with permits to mine and was not unique to the PolyMet project.”
Cohen says the DNR’s approach is flawed because it sets no timeline or benchmarks for closure. “We want to know when the mine will be closed,” said Cohen. “The object of the [mining] rule is to revegetate and integrate the site back into the surrounding environment. This will be a huge challenge for the DNR.”
Cohen says that challenge was made more difficult by the DNR’s decision to allow PolyMet to use a “wet closure” method that will retain highly-acidic water in the tailings basin, potentially for centuries. The agency can’t realistically “close” the mine until any discharge can be treated passively, such as through a manufactured wetland. Cohen describes that issue as the “Gordian knot” of the entire project.
Modeling done for the mine’s environmental impact statement suggests the site will retain a high degree of acid generating potential for hundreds of years, a period of time that far exceeds any permit previously issued by the state. Environmental groups contend the DNR couldn’t identify a date by which the permit could be ended, so they essentially fudged the issue. “But the Supreme Court was very clear that you cannot have a forever permit,” said Knopf. “And that’s what the DNR wanted, a permit without an end date.”
Naramore sees that issue as less critical. “While the Minnesota Supreme Court ordered the DNR to set a fixed term for the permit to mine, the court also noted that ‘DNR retains the power to amend the permit if a permittee fails to achieve reclamation within the proposed term,’” she notes.  “DNR will make a determination regarding the appropriate permit term in accordance with the court’s decision.”

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