Fond du Lac Band court victory helps all Minnesotans concerned with clean water

The PolyMet ruling forces EPA, MPCA to do their jobs

The Fond du Lac Band of Lake Superior Chippewa won a big court victory in February in its ongoing effort to stop multinational corporate giant Glencore from building the PolyMet copper mine upstream from its reservation.

The Band has significant and legitimate concerns that the PolyMet mine would worsen an already bad problem of mercury-contaminated fish and water for its community. The U.S. Environmental Protection Agency (EPA) knew of the problem and was supposed to notify Fond du Lac so it could participate in the permitting process.

The court ruled the EPA failed to follow the law. As a result, the U.S. Army Corps of Engineers has suspended PolyMet’s permit to fill or dredge a large area of wetlands for its mine. “It also means that five major permits for the $1 billion PolyMet project are now stayed or under review,” the Star Tribune wrote.

“The move spotlights the Band’s groundbreaking effort to assert Indigenous water quality standards as a ‘downstream state’ under the Clean Water Act,” it said.

The court ruling also spotlights lax environmental oversight by the Minnesota Pollution Control Agency (MPCA) and the EPA.

A troubling pattern

This blog reported earlier this year on how the Minnesota court system is slowly forcing U.S. Steel to meet water quality standards for its Minntac tailings basin. Pollution had been seeping into the environment for decades and the MPCA has failed to stop it.

Last year, this blog reported on how the MPCA has allowed Enbridge Line 3 to proceed with construction in spite of the significant threats it poses to the state lakes, streams, wetlands, wild rice, global climate, and Indigenous rights.

And now we turn to the proposed PolyMet mine to see how both state and federal regulators lined up with corporate interests in spite of the project’s environmental risks.

Paula Maccabee, advocacy director & counsel for the environmental watchdog group WaterLegacy, called regulators’ efforts to approve PolyMet permits an “abuse of power,” one that “was not respectful of either science or the rule of law.”

She credited Fond du Lac for forcing the issue in court.

“Through thick and thin, the tribes remained the guardians of the water and the living beings who depend on water,” she said.

PolyMet Mine 101

View of current (undestroyed) PolyMet mine site, looking north. Photo by Ron Levine

Here are the PolyMet basics, as described in the court decision:

PolyMet would be the state’s first copper-nickel mine, located on the site of the former LTV taconite mine. It would cover 3,016 acres, including 1,311 acres of pristine, high‐quality wetlands. (Until a 2017 land swap, some of the current site was part of the Superior National Forest.)

PolyMet proposes to dredge and drain more than 900 acres of those pristine wetlands, which would be the state’s largest ever permitted wetland destruction.

The PolyMet mine would be approximately 70 miles upstream from the Fond du Lac Band’s reservation. The Band has federally approved water‐quality standards. It meets all of those standards except for mercury. The mercury levels are high enough that children can’t safely eat fish. The Band has recommended that adults limit eating fish.

Sulfate as well as mercury from existing mines upstream of the Fond du Lac Reservation are the primary reasons why mercury contamination in Fond du Lac’s fish is so high. Building PolyMet would only worsen the situation.

“The wetlands are dominated by peat bogs, the destruction of which will release significant amounts of mercury and affect the Band’s downstream water quality,” U.S. District Judge Patrick Schiltz wrote in his Feb. 16 order.

A promise not met

In 2015, pre-PolyMet, the MPCA was completing its Environmental Justice Framework. It promised to embed environmental justice principles into its work over the next three to four years.

In April, 2017, well into the PolyMet review, MPCA Commissioner John Linc Stine wrote: 

The MPCA defines environmental justice as the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.

John Linc Stine

Regardless of the pledge, the agency would go on to approve PolyMet permits in spite of the risks to Fond du Lac. The MPCA went a step further. It schemed to make sure that the EPA’s criticism of the state’s weak PolyMet water permit were kept out of the public record, information that would have bolstered Fond du Lac’s opposition. Hardly fair treatment or meaningful involvement.

A tale of two permits

Glencore needs multiple state and federal permits to proceed with PolyMet. Fond du Lac sued the EPA on two grounds in the federal court. The Band argued the EPA had a duty to object to Minnesota’s issuance of the PolyMet water pollution permit (“NPDES permit”) and a duty to give the Band a chance to block the federal Section 404 permit, like any other downstream “state.”

It won only on the second argument.

An examination of both permits shows the fragile state of our environmental protections and the power of politics over science.

PolyMet applied for its NPDES permit in July, 2016. The state of Minnesota administers it, but is supposed to comply with the federal Clean Water Act.

The EPA retains the right to review the state permit. If it finds the application incomplete or faulty – and documents it in writing – that stops the process. The MPCA can’t proceed until it fixes the deficiencies and gets the EPA’s OK.

The EPA’s prepared comments on the MPCA’s draft NPDES permit raised serious concerns. The EPA said draining large areas of wetlands would “release significant amounts of mercury into downstream navigable waters,” according to its March 2018 written comments.

The EPA also said the MPCA’s draft storm water permit appeared to leave mercury “wholly unregulated.”

Information suppressed

View of current (undestroyed) PolyMet mine site looking south. Photo by Ron Levine.

The MPCA lobbied the EPA to keep such criticisms out of the public record, a problem well documented by the Star Tribune and other media.

The MPCA asked EPA “to avoid using words like ‘deficiency’ and ‘significant’ in written communications, and MPCA pressured EPA not to submit comments during the public‐comment period,” the court decision said.

The EPA initially resisted such pressure. That changed when Trump administration appointees took over.

In March 2018, the new leadership overruled its own program staff and suppressed EPA comments. By the end of September 2018, political appointees “made clear to Region 5 career personnel that EPA would not object to PolyMet’s NPDES permit regardless of any scientific, technical, or legal concerns,” the court decision said. 

The EPA’s criticisms were never formally submitted in writing. Instead, they were read over the phone.

Had they been in writing, it would have forced the MPCA to address them.

The MPCA approved PolyMet’s NPDES permit in December, 2018.

Onslaught against federal environmental protections

Fond du Lac challenged this permit in court, saying the EPA failed to put into the record problems it knew existed. It argued that the EPA’s decision “was influenced by improper and irrelevant factors,” the court decision said.

Fond du Lac lost this argument. While the EPA has the power to comment on the permit, it isn’t required to comment. It’s up to the agency’s discretion.

The EPA’s decision not to submit comments wasn’t subject to judicial review, the Court ruled. 

For comparison, George Floyd was arrested at gun point for allegedly trying to pass a fake $20. Here, state and federal regulators conspired to hide known environmental problems – effectively defrauding the public of information that could affect the health of thousands of people, including those living in Fond du Lac.

Paula Maccabee, advocacy director & counsel, WaterLegacy

WaterLegacy’s Maccabee summed it up this way:

“The Clean Water Act was written with the assumption that the federal EPA would be the guardians of clean water. And I think the last four years were the greatest deviation that has ever been seen … The Trump EPA not only declined to object to permits, that administration made an onslaught on all the regulations that help states and communities protect clean water. It will be years before the framework of those laws is reinstituted.”

Paula Maccabee

A winning argument

Fond du Lac was more successful in challenging PolyMet’s federal Clean Water Act (Section 404) permit. Under this process, the EPA was supposed to notify Fond du Lac of the potential threats to its waters, just like it would any other state.

The EPA tried to use legal trickery to sidestep its obligation to warn and involve Fond du Lac.

The Band expected to get officially notified by the EPA, a step it needed in order to participate in the permitting process.

In spite of Fond du Lac’s requests, the EPA never formally notified the Band let alone responded to its queries.

The EPA’s argument went like this:

  • The EPA only has to notify Fond du Lac if the agency determines the project would negatively affect its waters.
  • The law doesn’t require the EPA to make a determination, it’s discretionary.
  • The EPA chose not to make a determination in PolyMet’s Water Quality Act permit.
  • Therefore, it didn’t need to notify Fond du Lac.

Put bluntly, the EPA was arguing its own negligence and indifference protected the agency from a court challenge. It had facts in hand to show PolyMet would harm downstream waters, but as long as it never made them part of the formal record, it didn’t have to tell Fond du Lac.

Fond du Lac almost lost on this legal point. Judge Schultz wrote: “This is a difficult issue, and there do not appear to be any judicial decisions addressing it.”

The Judge ultimately ruled in Fond du Lac’s favor, citing “common sense.” It would be “odd indeed,” he said, if the law “required a decision maker to do everything necessary to make a decision, but wasn’t required to actually make the decision.”

“[T]he Band would seem to have a plausible (perhaps even a slam‐dunk) claim that EPA did not act “in accordance with law,” he wrote.

The ball is now in the Biden Administration’s court.

Trying to fix the MPCA is another matter.

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