Serving Northern St. Louis County, Minnesota

Court of Appeals suspends two more PolyMet permits

Court will hear arguments on the merits of legal challenges on Oct. 23

Marshall Helmberger
Posted 9/19/19

REGIONAL— A three-judge panel of the Minnesota Court of Appeals has issued a temporary stay of two more permits for PolyMet Mining’s planned NorthMet copper-nickel mine near Hoyt Lakes. The stay, …

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Court of Appeals suspends two more PolyMet permits

Court will hear arguments on the merits of legal challenges on Oct. 23

Posted

REGIONAL— A three-judge panel of the Minnesota Court of Appeals has issued a temporary stay of two more permits for PolyMet Mining’s planned NorthMet copper-nickel mine near Hoyt Lakes. The stay, issued late last Wednesday, Sept. 18, puts PolyMet’s permit to mine and dam safety permit on hold until a three-judge panel of the court can hear further arguments on the need for a stay pending further legal proceedings. Those oral arguments are set for Oct. 23.

“The DNR shall be prepared to advise the court on the status of post-permit developments, including its evaluation of the Brumadinho dam failure and its consideration of whether Glencore will be added as a co-permittee,” wrote Chief Judge Edward J. Cleary, in his nine-page written order. The dam failure, which occurred earlier this year in Brazil, killed hundreds of mine workers. Brazil has since banned the type of tailings dam construction used at Brumadinho, which is similar to the dam proposed for use at the NorthMet mine.

In August, the court placed a stay on PolyMet’s water discharge permit over allegations that the the state’s Pollution Control Agency and Trump appointees at the Environmental Protection Agency had attempted to suppress critical comments from professional EPA staff. The court remanded those concerns to a district court for further fact-finding on the actions of the MPCA.

While such decisions are typically temporary, stays are rarely granted unless courts find merit in the arguments of the parties seeking the hold, and Judge Cleary indicated much the same in explaining his latest order. “Relators [environmental and tribal plaintiffs] raise serious, justifiable concerns about the ongoing regulation of the NorthMet project, and we agree that the post-permit circumstances that relators have identified require close attention, review, and appropriate action by the DNR and other permitting authorities,” wrote Judge Cleary.

The decision is clearly a victory for critics of the proposed mine, and most used the opportunity to call for open hearings, such as a contested case proceeding, to allow for greater scrutiny of agency decisions surrounding the NorthMet permitting.

“With three permits suspended and three investigations ongoing, it's time for Gov. Walz to take this matter seriously and tell his DNR to hold public hearings to ensure that Minnesotans are protected,” said Aaron Klemz with the Minnesota Center for Environmental Advocacy.

Water Legacy legal counsel Paula Maccabee also called for a contested case hearing, which would be held before a panel of administrative law judges. “PolyMet permits should remain stayed until public and unbiased contested case hearings have been held to protect Minnesota’s downstream communities, natural resources, and taxpayers from dam failure and long-term toxic pollution,” Maccabee stated, who said the court appears to be struggling to find a way to get the DNR to take such concerns seriously.

The DNR, in its own statement, found solace in the fact that the court declined to issue a permanent stay on the permits. “The temporary stay is intended to provide the court with the opportunity to understand the DNR’s consideration of these issues before work authorized under the Permit to Mine and Dam Safety Permits proceeds,” stated the DNR statement. “The DNR welcomes the opportunity to directly address its thorough consideration of the post-permit developments with the Minnesota Court of Appeals.”

The DNR is also pleased that the court rejected the appellants’ request to present new evidence, ruling that their appeal must be based on the information that the DNR used in reaching its permit decisions. The judges, consistent with the nature of the appeal process, noted that cases that review agency decisions are typically reviewed based on the record available to the agency at the time of the decision.

PolyMet officials expressed disappointment in the decision. “But we’re pleased that the issues will be addressed soon, within the already established court schedule,” said spokesperson Bruce Richardson. “For this reason, we don’t anticipate any negative effect to the overall project schedule at this time,” he said.

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