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Sep 10, 2020

What did the recent PolyMet decision mean?

Trimble Creek
Trimble Creek near the proposed site of the PolyMet mine. Photo: Rob Levine

September 10th, 2020
Communications Manager Sarah Horner, MCEA St. Paul Office

An important legal decision came out last week in one of MCEA’s ongoing PolyMet cases that we want to address, as it seems to have stirred up confusion. Some of the media coverage lacked nuance and context, or left out key components of the decision, while the narrative PolyMet pushed out was riddled with oversimplifications and inaccuracies. 

Here’s MCEA’s attempt to set the record straight.


In a nutshell, what was the decision about?

The Minnesota Court of Appeals sent the case to the Ramsey County District Court to determine whether any improper procedures occurred at the Minnesota Pollution Control Agency during the process of permitting the PolyMet water pollution permit.  

This transfer occurred because Environmental Protection Agency whistleblowers leaked documents indicating a backroom deal occurred between the political appointees at MPCA and EPA to deprive the public and the courts from knowing EPA staff concerns about the PolyMet water pollution permit. The Ramsey County District Court was charged with investigating the conduct between MPCA and EPA and determining whether that conduct was irregular, nothing more. 

The MPCA admitted that backchannel conversations occurred between political appointees at MPCA and EPA - an admission that never would have occurred if the Court of Appeals had not sent the case to the district court. MPCA also admitted that it deleted emails documenting the conversations. MCEA and its coalition partners argued this conduct was irregular and warranted sanctions. MPCA and PolyMet disagreed. 

This hearing only mattered because the record that the Court of Appeals relies on to assess the validity of the water permit MPCA issued for the project did not include important evidence that MCEA and its coalition partners believe undermines the lawfulness of MPCA’s permitting decision. 


So what did the judge decide? 

It’s a little complicated, but essentially the judge ruled that because there is no written law, rule, or policy that specifically prohibited MPCA from making a backroom deal with EPA political appointees, the state agency’s behavior in that regard did not amount to a procedural irregularity. 

That means the judge disagreed with MCEA and its coalition partners’ interpretation that a change in an agency’s past practice also amounts to a procedural irregularity under the law. 


Does that mean MPCA didn’t do anything wrong?

No, the judge clearly stated in his 104-page opinion that MPCA’s actions were motivated by its desire to avoid the negative press that would surely follow if EPA’s concerns about MPCA’s draft water permit surfaced in the public record. 

Further, the judge determined that MPCA’s decision to delete two emails it had sent to EPA staff where it expressly asked the federal agency to relay any comments or concerns about Polymet’s water permit over the phone, versus in writing, did in fact amount to procedural irregularities. But, because those emails found a way into the public record anyway, albeit only through whistleblowers, the judge opted not to sanction the MPCA for those actions. 

The judge’s decision does not quibble with the fact that the MPCA clearly attempted to shield important comments and concerns from the leading federal environmental oversight authority about the Polymet mining project, and in specific its water permit, from making it into the administrative record for the public and the courts to see.


Does this decision impact the status of Polymet’s water permit or the mining project overall?

No, this legal fight was squarely limited to the water permit’s administrative record and has no bearing on the validity of the water permit itself. 

The validity of the water permit, as well as all the other permits that need to be authorized for the mining project to proceed, still need to be decided by the Minnesota Court of Appeals. 

That means the recent legal decision does not have any impact on the overall project’s status, which is still far from becoming a reality. 


What happens now?

MCEA and its coalition partners are weighing whether they want to appeal the decision. An appeal would likely challenge the judge’s legal analysis, which MCEA believes was too narrow.  MCEA is concerned that this opinion concludes that parts of MPCA’s conduct, which flew in the face of basic transparency standards and the public’s best interest, are acceptable. 

Beyond that, MCEA staff, as well as its coalition partners, will continue their efforts to ensure that PolyMet follows the law and that no mining project is green-lighted that threatens the health of Minnesota or its precious resources. 

Our work is making a difference. Currently all of the project’s proposed permits have either been overturned or suspended due to MCEA and its coalition partners efforts, and we are well prepared for the legal battles that lie ahead on the project. 

As MCEA’s CEO Kathryn Hoffman said in her recent video statement, when it comes to these kinds of cases, some of which span more than a decade -- it's important not to inflate the significance of any one court decision.

“Some things go well, some things don’t” Hoffman said, and today, PolyMet continues to lack the permits needed to put shovels in the ground.