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Feb 10, 2023

Op-ed: Court got it right on 2040 plan: Minnesota Environmental Rights Act provides essential protection

This op-ed appeared originally in the The Minnesota Reformer. 2/10/23

Opinion by Kevin Reuther, Deputy Director and Chief Legal Officer, Minneapolis Office, 2/10/2023

Editor’s note: This is a response to a recent commentary about the Minneapolis 2040 Comprehensive Plan, which argued the future of comprehensive planning is at stake in ongoing litigation over the plan. 

Supporters of the Minneapolis 2040 plan like Alex Schieferdecker are understandably upset that the 2040 plan has been successfully challenged in court. 

But the court ruling is not “bizarre,” as he calls it, and the sky is not falling on all comprehensive planning. There is no need for legislators to adopt a special exemption in state law for city planners, as he suggests.

We are lucky in Minnesota to be one of the few states — especially in the Midwest — to have strong state environmental protection laws. Most of these laws were passed in the 1970s with broad, bi-partisan support. While we’ve seen plenty of environmental missteps in the last 50 years, on the whole, these state laws — along with foundational federal statutes like the Clean Water Act and the Clean Air Act — have served us well. It’s hard to imagine what our lakes and rivers, forests or cities would look like without environmental regulation.

The law at issue in the case challenging Minneapolis’s 2040 plan is the Minnesota Environmental Rights Act, or “MERA”, one of the state’s most important environmental protection statutes. MERA provides every person the right to challenge activities and decisions that will result in harm to the state’s environmental resources. In the 50 years since its passage, MERA has been used to protect everything from wetlands to the armory building in downtown Minneapolis. It has helped reduce hard-to-regulate pollution from agricultural run-off and halted excessive noise pollution from gun ranges. It gives each of us the right and the responsibility to challenge bad decisions that will lead to what the law calls “pollution, impairment or destruction” of the environment.

The state’s highest court, in the 2040 plan case, correctly decided that comprehensive plans — just like any other governmental decision that could result in pollution, impairment or destruction of the environment — are subject to challenge under MERA. This makes sense. As the court noted, comprehensive plans have “the direct effect of controlling a city’s land use development” by limiting and dictating zoning decisions. If what is allowed in a comprehensive plan will cause pollution, MERA provides an avenue to challenge the plan.

Schieferdecker seems perplexed by the court’s insistence that environmental impacts be assessed based on what is allowed by the 2040 plan rather than what the city expects to happen. But that’s how we ensure environmental protection and sustainability in a free market economy. Would you want the Department of Natural Resources to issue groundwater permits without limits because it didn’t expect or predict they’d be used? Should the Forest Service provide no cordage limits on timber harvest in its forest plan, relying instead on assurances or predictions from industry? No. A good forest plan sets an allowable harvest limit based on preservation of all the forest’s resources — timber, water quality, birds, animals, air quality. It’s a comprehensive plan for the forest.

I am not a city planner, but I am an environmental lawyer. And based on my review of the 2040 plan lawsuit and various court decisions, the heart of the issue is not evaluation of an “immediate and full build-out” of the plan. Rather, the central issue, based on the city’s arguments in the courts, is causation.

The city’s legal argument — rejected by the state’s highest court — would significantly narrow the broad reach of MERA. The city asserts that high-level municipal planning decisions do not “cause” pollution and that any legal challenge should only be to individual development projects when they are proposed and built. But as the courts have pointed out, MERA has long been interpreted to apply not just to on-the-ground activities that affect the environment, but to the governmental decisions that authorize those activities. 

Think forest plan: Should we have to wait until half the forest is harvested to bring the lawsuit alleging that the deforestation is destroying state resources? Or does it make more sense to challenge the plan that authorizes the overly destructive harvest?  

We protect our resources only by paying close attention to what is authorized by governmental decisions, not by trying to predict or speculate on what might happen. When a governmental decision — whether it’s a plan, a permit, a variance, or other approval — authorizes conduct that causes pollution of our environment, that decision has to be subject to challenge under MERA.

Will the 2040 plan harm the environment? Many of us think it won’t. A clean environment, reducing air pollution and greenhouse gas emissions,  and climate resilience are among the plan’s top goals. But so far it appears that the city hasn’t put much effort into showing that to the courts. 

Rather than seeking a court ruling that would gut one of the state’s bedrock environmental laws, or running to the Legislature for a special exemption, Minneapolis should give the court what it’s asked for: An accurate picture of what the 2040 plan allows and evidence showing that it will benefit the people of Minneapolis, and won’t harm our shared environmental resources.