The Environmental Review Express

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In the Legislature’s rush to “streamline” environmental review with proposals like House File 1, there’s a lot of talk about how such a measure would benefit “constituents” around the state. But one key constituent seems to have been pushed aside by all the feel-good rhetoric about creating jobs: the farmers and other rural residents who have to live and work next door to the results of a rush to judgment.

These are people who understand industries like farming and want business development in the community. But they also drink the water and breathe the air. They deserve a key place at the table when decisions are made about proposed factory livestock farms, tire burning plants or other large projects that can have a significant impact on the landscape. But proposals like House File 1 threaten to undermine citizen participation in the process (the Senate version of the bill will be heard in the Environment and Natural Resources Committee Tuesday).

One key way the legislation would severely limit citizens’ role in determining their community’s future would to change how legal challenges to the issuing of permits are handled. Under the proposal, they would not deal with the District Court in their area (as they do currently), but the Minnesota Court of Appeals in the Twin Cities. This not only increases the expense of filing a challenge, but limits citizens’ participation by forcing them to travel to the Twin Cities or a satellite courtroom to have their day in court. Attorneys for project proposers, on the other hand—many of which are based in the Twin Cities—prefer utilizing the Court of Appeals.

Having cases heard in District Court has helped avoid the placement of factory livestock farms in locations that could have been nothing short of disastrous.

For example, a decade ago a 500-cow dairy with a 7.3 million gallon liquid manure lagoon was proposed for Forestville Township in southeast Minnesota’s Fillmore County. The MPCA decided to not order an extensive environmental study of the proposal despite overwhelming evidence supplied by scientists, experts at the Minnesota Department of Natural Resources  and local farmers that the area in question was riddled with sinkholes and the manure lagoon would pose a major threat not only to rural wells and trout streams but nearby Forestville State Park. At one point, during a meeting with concerned neighbors, MPCA officials made it clear they viewed the proposers as clients,  making the citizens feel like an unwanted third-party, even a nuisance, in the process

And when the Minnesota Departments of Health and Natural Resources recommended that in fact the 7 million gallon lagoon proposal should undergo extensive environmental study, all hell broke loose. During a closed-door meeting in March 2000, a group of legislators severely criticized the DNR and DOH for recommending an in-depth environmental study, called an Environmental Impact Statement, on the project. In fact, according to an e-mail memo from an MDH official who was at the meeting, a high level of outright “hostility” was shown to both MDH and DNR staffers.

For some reason, none of the people who would have had to live next to the lagoon were invited to this meeting. Afterward, the DOH suddenly and without explanation ended up reversing its call for an EIS. If that’s not an argument for a more open decision making process, nothing is.

So, despite widespread opposition and overwhelming scientific evidence that it was a bad idea, the dairy looked to be on greased skids toward being built. But then the citizens took their mountains of scientific evidence to a party that wasn’t as influenced by political forces in Saint Paul: their local District Court. In late 200, District Court Judge Robert Benson ruled that the MPCA’s decision not to order an EIS study for the dairy expansion was “arbitrary and capricious” and failed to consider the possibility of an underground collapse of the large manure lagoon.

Wrote Benson: “If the basin would collapse how would ground water contamination be stopped? This Court could not find any information in the MPCA’s brief to answer this disturbing question. The MPCA should have addressed this issue and they did not.”

The proposers of the dairy withdrew the project and eventually expanded in a better location.

House File 1 threatens to limit citizens engaged in the process in other ways. For example, it would allow the proposer, rather than an agency, be the one that prepares a draft of the EIS. When an EIS draft is prepared by an agency, the very process is open to the public from beginning to end. When a proposer does it, they will likely keep the process closed, and the draft documents won’t be released to the public until they are turned over to an agency like the MPCA.

The public then has 60 days to review the information. That limits the time the public has to review a proposal that could affect their community for decades to come. Documentation around these proposals is complicated. Imagine trying to farm, raise your family, understand and comment on an environmental review within a matter of weeks. The more open the process, the better.

(It should be pointed out another bill has been introduced which even more dramatically weakens environmental review. House File 20 eliminates the right to petition for environmental review and the right to challenge a decision in court at all.)

There’s been a lot of talk about the expense of a non-streamlined environmental review process. But what about the cost of projects that, either because of location or other factors, turn out not to be such a good idea? Excel Dairy is a prime example of how something that was presented as “economic development” has turned out to be a massive burden on the public. And last fall the Star Tribune reported on how the rush to produce as much ethanol as possible in the state has produced plants that have major problems complying with even basic air and water quality laws.

A few years ago, siting of large-scale livestock operations in Wisconsin was greatly “streamlined” by taking away the right of local communities to have much of a say in where large-scale livestock operations were located. For a hint as to how weakening the permitting process in the name of “efficiency” has worked in the Dairy State, check out an investigative series in the Wisconsin State Journal. According to the Journal‘s investigation, Wisconsin is efficiently issuing factory farm permits at a record pace, and is just as efficiently doing little follow-up to determine how all that manure is being handled.

Rushing projects for the sake of rushing seldom produces good results. The same goes for policy.

Sure, the system could probably be made more efficient, something Gov. Mark Dayton alluded to when he issued his executive order this week calling on, among other things, the MPCA and DNR to make a decision on permit applications within 150 days. But often there are good reasons that an environmental review takes time. We certainly saw that with the Fillmore County case.

As Gwen Myers of the League of Women Voters told the House Environment, Energy, Natural Resources Policy and Finance Committee last week, “Transparency and citizen participation are our top priority. Sometimes that can be time consuming.”

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