MN Supreme Court decision in PolyMet case a win for Tribal Rights, public disclosure

The Minnesota Pollution Control Agency (MPCA) acted in an “arbitrary and capricious” manner when it issued wastewater permits for the PolyMet North Mine, the Minnesota Supreme Court ruled Aug. 2 on a 6-0 vote.

A concurring opinion, signed by five justices, criticized the MPCA for failing to recognize and follow the Fond du Lac Band of Lake Superior Chippewa’s stricter water quality standards, as required by law.

The decision highlights (again) the MPCA’s failure to live up to its mission: To protect and improve the environment and human health.

Minnesota Supreme Court’s decision returns the permit to the MPCA for further consideration.

McKeig’s Concurring Opinion

Minnesota Supreme Court Justice Anne McKeig

Associate Justice Anne McKeig authored the concurring opinion “to highlight the serious disservice” the MPCA and the U.S. Environmental Protection Agency (EPA) did by ignoring the Fond du Lac Band’s legal standing. (McKeig, a descendant of White Earth Nation, is the first Native American jurist on the state’s Supreme Court, appointed by Gov. Mark Dayton in 2016.)

“For the more than 4,000 members of the Fond du Lac Band, natural resource rights are more than just a property right, they are a way of life,” the concurring opinion said. “… Band members rely on their right to hunt, fish, and gather natural resources on the reservation and in the ceded territory for subsistence, cultural, and religious purposes. The Band’s reservation lies just 70 miles downstream of the proposed mine, and discharges from the mine will flow directly to the reservation and ceded territory, threatening natural resources that the Band’s members depend on.”

In addition to Fond du Lac’s Treaty Rights, the Band has legal standing as a separate state under the Clean Water Act (technically called “treatment as a state” status, or TAS).

The Fond du Lac Band’s interests “were an afterthought here.”

Associate Justice Anne McKeig

“More than 20 years ago, the Band set its own water quality standards so that members of the Band could safely exercise their treaty rights and preserve cultural traditions,” the concurring opinion said. The “MPCA was obligated to treat the Band’s environmental standards with appropriate solicitude.”

For instance, the Band has stricter water quality standards for mercury than the state of Minnesota, because band members rely so much on subsistence fishing.

The MPCA was supposed to assure the permit complied with Fond du Lac’s water quality standards, McKeig wrote. Instead, the “Band’s interests were an afterthought here—discounted by those with the responsibility and power to ensure compliance with the Band’s standards.”

Comment: This is a case where the MPCA could have written stricter pollution limits into the permit without taking a political hit from the right. The agency simply could have told PolyMet that it was legally bound to recognize Fond du Lac’s more restrictive water quality standards. Instead, it went out of its way to 1) actively seek less stringent pollution standards, and 2) ignore Fond du Lac’s legitimate rights and concerns.

It begs the question: What are the MPCA’s core values?

More from the files of confusing MPCA decisions

The MPCA’s failings are not unique to PolyMet’s NorthMet wastewater permit.

For decades, the MPCA has been ineffective in enforcing the Wild Rice Rule, for instance allowing the MinnTac taconite mine to discharge polluted water into the environment that significantly exceeds the limit on wild rice-killing chemicals. For a decade, (2009-2019) the MPCA was slow and ineffective addressing Northern Metal Recycling’s air pollution impact on North Minneapolis. Most recently, it acted powerless to protect the state and the world from Enbridge Line 3’s climate change impacts, even though it said addressing climate change was one of its top priorities.

The Supreme Court’s PolyMet decision gave a behind-the-scenes look at the agency’s effort to hide information from the public. The MPCA asked the EPA to keep its permit criticisms out of the public record.

For instance, on “one phone call between MPCA Assistant Commissioner Shannon Lotthammer and the EPA, she expressed concern that written comments from the EPA would ‘confuse the public’ and ‘create a good deal of press,’” the decision said.

“An agency decision is arbitrary or capricious
if it ‘represents the agency’s will
and not its judgment’.”

Minnesota Supreme Court

Yet the court’s statement stood out to me was: “An agency decision is arbitrary or capricious if it ‘represents the agency’s will and not its judgment’.”

What is the agency’s “will” anyway, and why wasn’t the MPCA’s “will” to protect Fond du Lac’s people and its waters?

The agency had plenty of guidance.

Early in his first term, Gov. Tim Walz issued an executive order committing to “meaningful consultation” with Native Nations.

The MPCA had a Tribal consultation in place, as well as a “Racial Justice Framework,” which says: “The MPCA focuses on developing strategies to reduce pollution and health disparities in communities most at-risk.”

The Fond du Lac Band is one of those “communities most at risk.”

How can there be such a profound disconnect between the MPCA’s stated aspirations and its actions?

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According to the decision:

The Fond du Lac Band said the MPCA’s permit limit for mercury was “1,298 times greater than the Band’s mercury criterion.”

The MPCA said using a membrane technology for treating wastewater “will ensure the discharged water meets the concentration standards for all pollutants, including mercury.”

But the EPA draft comment letter (never officially submitted) “cited specific concerns about mercury, stating that ‘the pilot study states that the effectiveness of the treatment system to remove mercury is unknown.’”

Bottom line: The EPA was concerned “the permit would not adequately protect downstream waters, including the water quality standards of a downstream tribe.”

And those comments were not in the official record.

McKeig said the court’s opinion would protect the Band’s interests by sending the permit back to the MPCA, adding “I write separately to emphasize the seriousness of the MPCA’s failure to create a record.”