Environmentalists, PolyMet both claim victory after Supreme Court ruling

Both sides are cheering after the Supreme Court issued a ruling related to the proposed mine in northeastern Minnesota.
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The Minnesota Supreme Court on Wednesday issued its ruling on permits for the proposed PolyMet copper-nickel mine in northeastern Minnesota. 

And both PolyMet and environmentalists are claiming victory. 

We'll break down the complicated ruling for you, starting with background on the proposed mine.  

The basics

PolyMet for years has been working toward building the state's first copper-nickel mine, called the NorthMet Project, a $1 billion open-pit mine near Babbit and Hoyt Lakes.

Supporters of the mine say it's safe, it'll create jobs and boost the economy in northeastern Minnesota. Opponents, though, say it'll harm the environment and ruin water quality for those who live downstream. 

PolyMet has gotten all the major permits it needs to dig in but the project has stalled because many of the permits are now under review or stayed for a myriad of reasons, including lawsuits from environmentalists and court decisions. 

Wednesday's ruling

The Minnesota Supreme Court issued a 48-page ruling Wednesday related to the PolyMet project's permit to mine and its dam safety permits, which the Minnesota Department of Natural Resources (DNR) issued in 2018. 

The ruling comes after the Minnesota Center for Environmental Advocacy and WaterLegacy appealed the DNR's decision to deny their requests for what's called contested case hearings, while the Fond du Lac Band of Lake Superior Chippewa appealed the DNR's decision to grant the permit to mine and two dam safety permits.

The Minnesota Court of Appeals ruled on the case last year, resulting in appeals to the state Supreme Court. 

That brings us to Wednesday's decision, which was mixed (the state's highest court affirmed part and reversed part of the Court of Appeals decision). 

As a result, both those opposed to the mine and PolyMet claimed victory (they pointed to different portions of the Supreme Court's opinion). 

Here's a look at the issues on which the Supreme Court ruled: 

1. The Supreme Court upheld a 2020 Minnesota Court of Appeals ruling that reversed the DNR's decision to grant the critical permit to mine. 

The appeals court had ordered the DNR to set an appropriate term for PolyMet's permit — a date by which the site of the mine and wastewater would have to be cleaned up and returned to nature. But the Appeals Court said the DNR failed to do so. 

The Supreme Court agreed and ordered the DNR to set an appropriate term.

The DNR in a statement Wednesday said it would "carefully review and implement" the Supreme Court's instructions to establish a fixed term for PolyMet's permit to mine.

And opponents of the mine cheered the news. The Friends of the Boundary Waters Wilderness said in a statement, "PolyMet has no permit to mine. PolyMet cannot put a shovel in the ground. WE WON."

2. The Supreme Court sent a dispute over the mine's waste management plan back to the DNR for a contested case hearing on the effectiveness of the proposed bentonite amendment for PolyMet's proposed tailings basin and whether it would keep pollution contained effectively. Another win for environmental activists. 

The DNR in a statement Wednesday said it would grant a contested case hearing on "whether bentonite is a practicable and workable technology to reduce oxygen infiltration into the project tailings."

3. A main point of the case involved whether the DNR has discretion to deny petitions for contested case hearings. The court ruled in favor of the DNR and PolyMet in regards to this. 

Mine opponents called for contested case hearings on several other issues related to the mine, but the Supreme Court rejected all of them except the aforementioned issue related to the effectiveness of bentonite clay capping for the eventual closing of the tailings basin.

The ruling said the DNR didn't abuse its discretion in denying the contested case hearing requests because "substantial evidence supports those decisions." And PolyMet put this in their win column.

4. The Supreme Court said the Court of Appeals erred when it reversed two dam-safety permits for the PolyMet project and said the DNR had to hold a contested case hearing. The ruling favors the DNR and PolyMet, stating the DNR adequately addressed concerns related to dam safety. PolyMet cheered this portion of the ruling, too.

This ruling is not only significant for PolyMet's project but because it's the first time the DNR has applied the state's non-ferrous mining laws and rules. 

The DNR said the Supreme Court "offered a clarifying interpretation of who has standing to request a contested case hearing but concurred with the DNR's application of the standards for granting a contested case hearing."

"The Court found ample evidence in the permit records to support the DNR’s decisions on the critical issues of dam safety and tailings basin closure," the DNR said. "The Court further found that DNR did not need to hold a contested case hearing on financial assurance or whether Glencore [PolyMet's owner] was required to be on the permit to mine at the time of permit issuance."

PolyMet celebrates 'key legal victory'

PolyMet called the Supreme Court's ruling a "big win," saying it looks forward to presenting evidence during the contested case hearing and when the process is over, the DNR can re-issue the permit to mine.

“This is a big win for PolyMet, our supporters, and for industry in Minnesota,” Jon Cherry, chairman, president and CEO of PolyMet, said in a statement, noting this decision comes a few months after the state Supreme Court ruled in favor of PolyMet's air permit. 

“We continue to review the decision and will have more to say about our path forward in due course,” Cherry said. “In the meantime, we celebrate another key legal victory along with all who value integrity in the state’s environmental review and permitting process and who want responsibly mined metals for infrastructure improvements, electric vehicles and renewable energy. 

"These metals that are found in abundance in Minnesota remain in the ground at a time when the supply continues to diminish and demand increases," Cherry added. 

Environmentalists cheer court's decision 

Activists and environmentalists who have been fighting PolyMet's mining proposal stressed the ruling is their victory, not PolyMet's, because the company no longer has a permit to mine.

“The Band is extremely pleased with the Supreme Court’s invalidation of the permit to mine. The decision recognizes that DNR failed to address significant factual and legal issues that must still be addressed," Kevin Dupuis, tribal chairman of the Fond du Lac Band of Lake Superior Chippewa, said in a statement. "The Band is not opposed to mining, just irresponsible mining and will continue to advocate and fight to ensure that the waters, natural resources and environment are protected for the Band, its members and all Minnesotans."

At a news conference Wednesday, Aaron Klemz, the director of public engagement at the Minnesota Center for Environmental Advocacy (MCEA), said it's been a long battle, calling the ruling a "critical moment" because this is the "first time we've reached the end of the road on a decision point for PolyMet."

Klemz said there is no denying PolyMet's permit to mine was issued "illegally" and needs to be redone entirely.

Others, including Duluth for Clean Water, are relieved by the court's decision, and said it confirms what they've been saying for years — the DNR has failed to do its job with it comes to PolyMet. 

"Fortunately, this is an opportunity for a re-set. We are relieved that our communities — and all of Minnesota — will finally get evidentiary hearings on the very clear problems with the reckless PolyMet proposal. We look forward to a future that respects all people and communities of the St. Louis River and Lake Superior," Duluth for Clean Water said. 

MCEA says the ruling is "further evidence" the state's process for granting sulfide mining permits is "broken," noting courts in Minnesota have overturned three of PolyMet's four permits that were issued by the MPCA and DNR.

One lawmaker is trying to change the permitting process. 

Rep. Jim Davnie, DFL-Minneapolis, is the sponsor of  the Prove it First bill that would require scientific proof that a copper-sulfide mine has operated and closed without polluting before the DNR and MPCA can issue a permit. 

In a statement Wednesday, he said the court's decision "reflects Minnesotans' strong tradition and values of protecting our unique and nationally treasured Boundary Waters."

"Acid mine drainage has no place in our BWCA or Lake Superior. As the science shows us, we know copper sulfide mining carries a significant threat of water pollution, which can have devastating consequences," Davnie said. "Minnesotans deserve transparency — and today’s decision provides a path forward in permanent protection for generations to come."

What's next? 

PolyMet's permit to mine heads back to the DNR for more proceedings. 

First, the DNR will hold a contested case hearing (it's like a trial that's held before an administrative law judge) on PolyMet's plan to line tailings basin (the thing that holds water and mine waste after ore is mined and processed) with bentonite to determine if it'll work to prevent acid mine drainage pollution, MPR News says

This could take anywhere from at least several months to a year.

Then, the DNR has to place a "definite term" on the permit to mine (currently it says mining and reclamation of the mine site has to be completed "approximately in the year 2072" with water treatment continuing until it meets state standards, which could be needed for 200 years), MPR says. 

So, the DNR has to come up with an end date for the mine and approve a new permit to mine. But that permit could also be subject to lawsuits, which would further delay the already delayed project.

More on PolyMet

PolyMet's NorthMet project would mark the first large-scale mining effort within the Duluth Complex and the first Minnesota company to mine precious metals in northern Minnesota.

PolyMet says the Duluth Complex is one of the world's major, underdeveloped mining regions that's rich with copper, nickel and palladium, as well as cobalt, platinum and gold. 

Wednesday's state Supreme Court ruling is the latest action taken on the proposed project. Just last month, the U.S. Army Corps of Engineers pulled PolyMet's wetlands permit amid the Environmental Protection Agency's (EPA) 90-day review of the project.

And last week, the EPA inspector general found the EPA didn't follow its own procedures in the permitting process with the Minnesota Pollution Control Agency (MPCA). 

The NorthMet project is separate from another proposed copper-nickel mine in the area. The Twin Metals underground mine is proposed near Ely and the Boudary Waters Canoe Area Wilderness that's also under review

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