Army Corps decision a victory for water, tribal rights

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Matt Doll, Minnesota Environmental Partnership

At many times in the past few years, it’s seemed like the NorthMet (formerly PolyMet) copper-nickel sulfide mining project was only a few decisions away from breaking ground in Northern Minnesota. It had plenty of financial power, political support from key Minnesota lawmakers and other leaders, and the permits it needed. Then their major permits were suspended in the courts thanks to efforts of clean water advocates. If the groundbreaking for the project as designed would have happened, it would have meant widespread destruction of Minnesota wetlands and a huge new pollution threat to the St. Louis River watershed and the communities that call it home.

Last Thursday’s momentous decision by the Army Corps of Engineers to revoke the mine’s 404 wetlands destruction permit has fundamentally reset the story. Rather than give the mining conglomerate and its foreign backers what they wanted, the Corps sided with the Fond du Lac Band of Lake Superior Chippewa, the Anishinaabe band whose reservation lies directly downstream of Northmet’s pollution.

A regulatory breakthrough

It’s hard to overstate the significance of NorthMet’s plan being thrown out. In almost every other case, state and federal agencies have treated the mine’s backers as their clients, approving permits for air pollution, water pollution, and waste storage. Even when faced with the scientific evidence – that no mine of this type has operated anywhere in the United States without polluting the surrounding environment – the agencies have accepted the mine’s dubious promises that this time will be different.

Scientists at the Minnesota Pollution Control Agency (MPCA) and the Department of Natural Resources do important work, and their expertise shouldn’t be discounted. But the permitting process and the regulations that govern it have been set up to mitigate polluting projects, not prevent them.

Fond du Lac’s victory

In this case, tribal sovereignty was the factor that made the difference. In addition to its treaty rights to hunt, fish, and harvest traditional food resources, the Fond du Lac Band has the authority to set its own water quality standards separately from the state.

The Army Corps originally granted the 404 permit to PolyMet in 2019. The Fond du Lac Band objected on the grounds that the destruction of wetlands allowed by the permit would violate its water quality standards for mercury – already a major issue in Northeastern Minnesota. In 2021, the EPA requested that the Army Corps suspend the permit and investigate Fond du Lac’s claims. The EPA backed the Band’s concerns on the mercury issue, helping to make the case to the Army Corps.

Without the 404 permit, the wetlands on the site can’t be destroyed and the mine cannot be dug, regardless of the fate of the other state and federal issues at stake.

What’s next

The Army Corps wrote in its decision memo that it “is unable to include sufficient conditions in the CWA Section 404 permit that would ensure compliance with the applicable downstream water quality requirements of the Band…” That means that if NorthMet wants to try again, it will have to submit an entirely new permit application and face the same scrutiny on the same issues.

The fact remains, however, that this mine is simply not safe for the Fond du Lac Band, not safe for the St. Louis River, and not safe for Minnesota. If this mining plan is carried out, it would pollute the Lake Superior watershed at a time when the Great Lakes are threatened by climate change and unprecedented pollution. It would destroy vast tracts of wetlands, one of Minnesota’s most critical assets when it comes to absorbing carbon and fighting the climate crisis. It would leave behind waste that must be stored for centuries using unproven technology, the failure of which would be catastrophic.

Whether or not this decision causes NorthMet’s backers to appeal, wait for a different federal administration, or back down, it’s clearly time for Minnesota to move on from PolyMet/NorthMet. We have other ways, like advanced recycling, of securing the minerals that the mine would provide, and on a much larger scale. We have alternative economic prospects for the Iron Range that would produce sustainable jobs without ruinous pollution.

Whatever the case, we cannot allow clean water, climate protection, or tribal rights to be jeopardized. We’re glad that the Army Corps of Engineers made the right decision on this dangerous permit, and we thank the Fond du Lac Band and all those who have spoken out on the dangers of this project.

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