REGIONAL— The largest federal employees union in the country has joined a coalition of other groups in asking the Minnesota Supreme Court to take up an appeal over the state Pollution Control Agency’s handling of the water discharge permit for the proposed PolyMet mine.
The American Federation of Government Employees, Local 704, submitted a legal brief this past week expressing its concerns about an appeals court ruling in January, which found that the MPCA had engaged in “procedural irregularities” when it prevailed on the Environmental Protection Agency to withhold written comments on its concerns over PolyMet’s water discharge permit. That effort was later exposed by EPA whistleblowers, who are represented by the AFGE.
A Ramsey County district court judge had earlier faulted the MPCA’s actions but did not find that the agency had violated any law and that the action did not, by itself, warrant reversing the permit. The Court of Appeals had agreed with that assessment, a decision which several environmental plaintiffs, including the Minnesota Center for Environmental Advocacy and Friends of the Boundary Waters, have now appealed to the state’s Supreme Court. In addition to the federal workers’ union, the groups Public Employees for Environmental Responsibility, the Minnesota Coalition on Government Information, the Minnesota Well Owners Organization, and two Minnesota administrative law professors, have submitted their own briefs in support of Supreme Court review and asking to be authorized as amicus, or “friend of the court” filers in the case.
In their submission, lawyers for the AFGE argued that the MPCA’s actions represented a fundamental violation of administrative process. “Simply put, when a government agency acts in secret—or deliberately obscures its motives or reasoning—it becomes difficult to tell whether the agency’s actions were lawful or fair,” states the union in its submission to the high court. “When the government hides the ball, it undermines the ‘public accountability of three administrative agencies,’diminishes ‘public access to governmental information,’ frustrates ‘public participation in the formulation of administrative rules,’ and inhibits ‘the process of judicial review.’”
The Minnesota Supreme Court, unlike the Court of Appeals, only agrees to hear a small fraction of the cases that appellants submit for consideration.
Regardless of the high court’s decision on whether to hear the case, the PolyMet water discharge (or NPDES) permit remains in limbo as a result of the January appellate ruling.
The Court of Appeals found that the MPCA must determine whether PolyMet’s discharges of pollutants to groundwater should be regulated under the permit.
The MPCA had previously determined that any discharges to groundwater were not subject to regulation under the Clean Water Act, but that view has been overturned by a 2019 U.S. Supreme Court decision that determined that discharges to groundwater that eventually reach surface waters may be subject to federal regulation if “they’re the functional equivalent of a discharge to surface water.”
The Court of Appeals had sent the permit back to the MPCA to analyze whether PolyMet’s anticipated seepage of pollutants to groundwater meets that standard. PolyMet’s permit remains suspended until that work is completed. Depending on the outcome of that analysis, the MPCA may be required to make modifications to the NPDES permit.