PolyMet’s real plan - at least if you believe what it tells its investors - is to build a much bigger mine. In its reports to investors, as required by Canadian securities law, PolyMet describes scenarios for its proposed mine in Minnesota that are far bigger than what it described in the permit application -- 118,000 tons per day versus 32,000 tons per day of ore processed. This type of “bait and switch” scheme is common in the industry, and the only reason PolyMet’s real plan is in the record at all is because MCEA lawyers submitted it to the Minnesota Pollution Control Agency for investigation.
Unfortunately, the MPCA did not investigate this key evidence before issuing the PolyMet air pollution permit. By ignoring PolyMet’s true plans which would have required a “major” air pollution permit, MPCA granted a PolyMet a “minor” air pollution permit which involves less protective standards. The goal is a “foot in the door,” a “train out of the station.”
MCEA appealed to stop this bait-and-switch scheme and won a unanimous opinion at the Minnesota Court of Appeals overturning the air pollution permit in March, 2020.
On February 24, 2021, the Minnesota Supreme Court reversed in part and sent the matter back to the Court of Appeals to consider whether PolyMet knowingly submitted false or misleading information to the MPCA in violation of state law during the permit review process.
Despite this new and court-afforded opportunity to conduct a genuine analysis of PolyMet’s true plans, MPCA again declined to do so, merely shuffling permit language around but declining to conduct a genuine analysis of the bait and switch proposition and what it would mean for Minnesota going forward if allowed.
As a result of MPCA’s lack of analysis, MCEA and our allies are forced to once again seek court review of the gaps.
Key Timeline Events
Minnesota Supreme Court rejects PolyMet's attempt to dismiss case on procedural grounds. Reinstating our appeal.
The Minnesota Supreme Court ruled in favor of MCEA after reviewing an attempt by PolyMet to dismiss the air permit appeal based on a procedural technically related to how PolyMet was served. The Supreme Court's ruling reinstated our appeal. The appeal of the air pollution permit now heads back to the Court of Appeals for review. This allows MCEA to continue to push for a full investigation of the impact of PolyMet’s expansion plans.
MCEA seeks review of MPCA’s revised findings of fact to award PolyMet the Air Permit
MCEA again seeks appellate review of MPCA’s permit decision based on the agency’s lack of investigation into questions regarding PolyMet’s truthfulness during permitting. This starts the briefing process where attorneys for MCEA, MPCA, and PolyMet will argue their positions to the Court of Appeals.
MPCA issues PolyMet its requested Air Permit
After the Minnesota appellate courts remanded the permit decision back to MPCA, the agency issues revised findings of fact and conclusions of law to once again award PolyMet its Air Permit.
Minnesota Supreme Court Issues Mixed Opinion, Sends Case Back to Court of Appeals
On February 24, 2021, the Minnesota Supreme Court issued a mixed opinion, reversing in part, and sending the matter back to the Court of Appeals to consider whether PolyMet knowingly submitted false or misleading information to the MPCA in violation of state permitting law.
Minnesota Supreme Court hears oral argument on the Air Permit for the PolyMet mine proposal
MCEA Attorney Evan Mulholland argues the case in front of the Minnesota Supreme Court, opposed by attorneys representing PolyMet and the Minnesota Pollution Control Agency.
Minnesota Supreme Court agrees to review Court of Appeals decision
After petitions from the Minnesota Pollution Control Agency and PolyMet, the Minnesota Supreme Court agrees to review the case.
PolyMet and State of Minnesota request Supreme Court review of decision
On April 21, PolyMet and the State of Minnesota each request that the Minnesota Supreme Court review the Court of Appeals decision.
Minnesota Court of Appeals rules for MCEA, remands permit to agency for investigation
In an unanimous decision, the Minnesota Court of Appeals finds that the Minnesota Pollution Control Agency had failed to fully investigate whether the air pollution permit was a “sham permit.” The Court remanded (returned) the permit to the MPCA to investigate PolyMet’s expansion plans and whether they should modify the air pollution permit.
Oral argument at the Court of Appeals
MCEA attorney Evan Mulholland represented us and our clients (Sierra Club, Center for Biological Diversity and Friends of the Boundary Waters Wilderness) at the Court of Appeals. Audio of the oral argument is available at this link.
MCEA appeals air pollution permit
Under Minnesota law, people and organizations have 30 days after the issuance of a permit to appeal. The appeal goes to the Minnesota Court of Appeals and starts months of briefing where lawyers on all sides submit briefs on the case to the Court.
Minnesota Pollution Control Agency issues PolyMet air pollution permit
In his last few days as MPCA Commissioner, John Linc Stine signs the air pollution permit for PolyMet. PolyMet is issued a “synthetic minor” permit, in which PolyMet agrees to limit their operations to a certain level and less protective standards are included in the permit.
MCEA asks Minnesota Pollution Control Agency to investigate “sham permitting”
MCEA attorney Evan Mulholland sends a letter to MPCA detailing evidence that PolyMet is planning a much larger mine than what is being considered for an air pollution permit. In December, a follow up letter is sent after the agency fails to respond. Six days after the second letter, MPCA replies with a short letter denying the request to investigate.
BOB AND PAT TAMMEN ON WHY THEY SUPPORT MCEA:
"Last winter Pat and I sat in a Saint Paul courtroom and watched MCEA defend our clean water from the mining industry. The environmental victory brought joy to our retirement years.
That's why we give."