Minnesota’s rules for copper-nickel mines were written in 1993, but had never been used. 25 years after they were written, PolyMet became the first proposal to attempt to be permitted under these rules. While the global mining industry and governments across the world are moving away from storing liquid mine waste behind “upstream” earthen dams, the Minnesota Department of Natural Resources (DNR) gave PolyMet a permit to build the largest upstream dam in Minnesota history. 252 feet high, it would hold back hundreds of millions of tons of polluted water and mine waste - forever.
MCEA challenged the Minnesota DNR’s decision to issue PolyMet’s Dam Safety Permit and Permit to Mine because the permits violated applicable rules, lacked enforceable standards, were based on incomplete plans, and relied on unproven technology. We asked DNR to order a contested case hearing to build a factual record before issuing the permits. And we raised concerns about similarities between a dam that collapsed in Brazil, killing hundreds of people, and the design of the PolyMet dam.
With hundreds of years of pollution at stake, the legal case about the state permits for the PolyMet mine proposal has become a critical moment. The legal case about PolyMet will determine how Minnesota agencies and courts respond to Twin Metals’ mine proposal next to the Boundary Waters, and other proposals waiting in the wings.
In January 2020, the Minnesota Court of Appeals reversed DNR’s decision to issue the permits and required DNR to hold a contested case hearing. The Court made clear in its opinion that the DNR should consider new information—such as the Brazil dam collapse—at the contested case hearing. The Court also made extensive reference to a “friend of the court” brief by former Governor Arne Carlson, MCEA board members Ron Sternal and Alan Thometz and others addressing the adequacy of PolyMet’s financial assurance. In March 2020, the Minnesota Supreme Court announced it would review the Court of Appeals decision. We are currently submitting our briefs to the Court, and no oral argument date has been announced.
Key Timeline Events
Oral argument at the Minnesota Supreme Court
MCEA attorney Ann Cohen represented MCEA and our clients at the Minnesota Supreme Court. After the argument, the DNR attempted to bolster its weak case by asking the Court to consider some new documents that DNR had failed to include in the administrative record. We opposed this motion. On November 16, 2020, the Court denied DNR's request in a strongly-worded order that used DNR's own words against it.
Minnesota Supreme Court agrees to review Court of Appeals decision
After petitions from the Minnesota Department of Natural Resources and PolyMet, the Minnesota Supreme Court agrees to review the case.
PolyMet and State of Minnesota request Supreme Court review of decision
PolyMet and the Minnesota Department of Natural Resources each request that the Minnesota Supreme Court review the Court of Appeals decision.
Minnesota Court of Appeals rules for MCEA, overturns permits and orders a contested case hearing to establish the facts
In a unanimous decision, the Minnesota Court of Appeals finds that the Minnesota DNR should have ordered a “contested case hearing,” an administrative trial in front of a judge, before issuing the permits. They overturned the permits and directed the DNR to hold that trial before making decisions on these permits.
Oral argument at the Court of Appeals
MCEA attorney Ann Cohen represented us and our clients at the Court of Appeals. Audio of the oral argument is available at this link. In addition to the main arguments of the case, the Court also heard arguments about continuing the stay issued in September 2019. One day after the oral argument, the Court continued the stay until they issued their decision.
Court of Appeals stays (suspends) DNR permits in advance of oral argument and decision
MCEA and partners request DNR reconsider permits in light of Brazilian mine disaster
After the deadly collapse of the Brumadinho, Brazil dam that was a similar design to PolyMet’s proposed dam, MCEA and our partners asked DNR to reconsider their permits in light of new evidence.
MCEA appeals permit to mine and dam safety 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 Department of Natural Resources issues PolyMet permit to mine and dam permits
DNR Commissioner Tom Landwehr issues three permits to PolyMet for their proposed mine - a permit to mine and two dam safety permits. This comes after years of environmental review with record numbers of public comments opposed to the proposal, and serious concerns about the pollution and safety of the mine proposal.