A victory for clean water: PolyMet permit goes back to DNR

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Matt Doll, Minnesota Environmental Partnership

On Wednesday, April 28, the Minnesota Supreme Court issued a decision on the PolyMet copper-nickel sulfide mine proposal that puts another wrench into the works and keeps the door open for protecting Minnesota’s waters. The Court upheld a lower court’s decision to overturn PolyMet’s permit to mine on the grounds that the Minnesota Department of Natural Resources (DNR) erred on at least two issues when it granted the permit.

First, the DNR needs to include public, scientific testimony in deciding whether the use of bentonite clay in the mine’s tailings dam – where PolyMet plans to store its toxic waste – would provide effective protection against a spill. And the DNR failed to set an actual time limit on when the operation needs to be cleaned up. The Court’s decision doesn’t preclude PolyMet getting another permit in the future, but it does send it back to the drawing board, and prevents PolyMet from putting a single shovel in the ground for the time being.

While the court result wasn’t a total victory, the result is that PolyMet faces another hurdle that improves the possibility that it can be stopped entirely. The DNR will have to revisit these issues and hold a public contested-case hearing on the bentonite clay issue, and will have to set a deadline for the mine’s operation and decommissioning. 

The use of the dam and the cleanup efforts afterward are critical, because the waste from a sulfide ore mine is acidic and destructive to the surrounding environment. The dam storing the waste would have to be maintained for decades or more just to keep the acid contained. A spill of this waste into the local watershed would be devastating to downstream communities and waters. We’ve seen no solid guarantee that PolyMet would stick around to pay for protecting the water or cleaning up the pollution. 

MEP applauds the plaintiffs in this case: the Fond du Lac Band of Lake Superior Chippewa (whose reservation lies downstream from PolyMet and whose treaty rights to hunt and gather include the mine site), as well as MEP member groups Friends of the Boundary Waters Wilderness, Center for Biological Diversity, Minnesota Center for Environmental Advocacy, and WaterLegacy.  We’re glad to have them fighting these legal battles as Minnesotans and organizations continue to stand up against sulfide mining.

The long game on PolyMet

The DNR’s mission statement in part reads that it works “to provide for commercial uses of natural resources in a way that creates a sustainable quality of life.” This is a laudable goal, but one that the DNR has not lived up to when it comes to PolyMet, whose mine proposal is not conducive to a sustainable quality of life in the St. Louis River-Lake Superior watershed. It also conflicts with Minnesota’s climate goals, as it would result in the destruction of 900 acres of wetlands, a crucial carbon sink. PolyMet’s approval by the DNR and other agencies is an unfortunate example of “regulatory capture,” a situation in which an agency’s policies and actions are more accommodating to the  corporations which pollute, rather than the public interest they are supposed to serve. 

That’s part of the reason that MEP groups have supported Prove It First legislation in Minnesota. Prove It First would prevent a sulfide mine from being permitted in Minnesota until we have independent proof that a similar mine elsewhere in the United States has operated for ten years and been closed for ten years without polluting the surrounding environment. No sulfide mine has met that standard in the history of this country, and there’s no reason for Minnesota to be the guinea pig. Prove It First is not poised to become law this year, but a growing number of lawmakers, currently at 52 in the House and Senate – are signing on as they recognize the threat that sulfide mining poses.

The legal and political battles around sulfide mining in Minnesota will continue, and this Supreme Court decision gives us hope that PolyMet can be prevented from causing destruction in northern Minnesota. We hope that the DNR under the Walz Administration recognizes that its highest responsibility is to the people, water, and climate of Minnesota, not to PolyMet and its supporters and investors.

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