In the many years of controversy for sulfide mining in Minnesota, we hear one common refrain from mining supporters - Minnesota has the best environmental laws in the world. We would do it right here. As it turns out, those strong environmental laws? In DNR's estimation, they're more like guidelines.
On Wednesday, May 16, MCEA Senior Attorney Ann Cohen came before the Minnesota Court of Appeals and asked a simple question - do Minnesota's rules governing sulfide mining actually hold mining companies to any meaningful standards? Minnesota has an entire chapter of rules devoted to sulfide mining - Chapter 6132. And yet, the language of the chapter is riddled with loopholes like these:
One rule defines a project that "adversely affects natural resource" as meaning an "unacceptable level of impact on the natural resources as determined by the commissioner."
Another rule states that a mine needs to needs to reintegrate the site into the natural watershed "within three years...or within a longer period if approved by the commissioner."
A third says that mining shall be allowed "only if there will be either no adverse impacts on the natural resources or provisions acceptable to the commissioner are proposed..."
So the theme of the rules is that sulfide mines have to meet certain standards and timelines, unless they don't, because the commissioner says so.
Frustrated by the DNR's interpretation that the rules impose almost no actual requirements on sulfide mining operations, MCEA and our partners decided to challenge the rules themselves - because, if they don't require anything, they aren't rules at all. And DNR misled the public by ever calling them rules in the first place, when they were put into place in 1992.
In this appeal, MCEA argued that when rules allow the commissioner to determine, in his or her sole discretion, whether or not a mine meets environmental standards, those aren't rules at all. Rules must contain some sort of objective standards so that it is possible to determine whether a project meets those standards. In a rather shocking moment, PolyMet's lawyer stood before the court and insisted that, indeed, the state doesn't have any standards, and that's because the legislature didn't authorize the DNR to impose any. The Mineland Reclamation Act, one of the laws that gives DNR authority over sulfide mining, "requires no such thing" as standards, and instead gives the DNR "broad, sweeping discretion" to protect the environment "and promote mining" with total flexibility.
In other words, in PolyMet's interpretation, it doesn't need to meet any environmental standards from by DNR in order to mine - it needs only the nod of the commissioner. We at MCEA hope that the DNR still has the grace to blush when it hears such arguments from a mining company that it has sided with in this litigation. As MCEA Senior Attorney Ann Cohen pointed out in her argument, if only the DNR and the mining company have a say in what meets the requirements of the law, "it will be a cozy universe indeed."
We couldn't do this work without supporters like you. We were very excited to see so many MCEA donors in court to support us. In fact, a new donor came up and introduced himself to us after the argument. He was inspired to make a gift after seeing MCEA's powerful legal work.
Bipartisan group of legislators Introduced 21st Century Mining bill at Capitol this session
"Strongest standards in the world"? Only if we're talking about curling. While nonferrous mine boosters continue to use the "standards" talking point to promote copper-nickel mine proposal, the reality is that the rest of the world has run far ahead of Minnesota when it comes to nonferrous mine dam standards.
That's why a bill (SF 2873/HF2872) introduced at the Minnesota Legislature that would bring Minnesota into line with global standards for mine tailings dams is such a big deal. (For those of you who may not know, tailings are the waste created in the mining process and the dam's job is to contain them so they don't cause catastrophic harm including pollution and death).
As we've seen in Brazil, British Columbia, and elsewhere, tailings dams are collapsing more frequently worldwide. In response, Brazil has banned all mine tailings dams with an "upstream" design, and multiple states and provinces have significantly strengthened standards for copper-nickel mine tailings in just the past four years. But Minnesota has stood still. This article in MinnPost does a good job of describing the legislation.
This bill was introduced by a bipartisan group of legislators, led by Sen. Paul Anderson (R-Plymouth) and Rep. Steve Sandell (DFL-Woodbury.) It uses a moderate, industry-written model -- passed with bi-partisan support in Montana -- and requires exceedingly reasonable improvements like an independent review of tailings designs, and the establishment of minimum safety factors. It's not everything that we want, but we think it's a good start for a needed conversation about the risks of mine tailings dams.
But even this modest, industry-written bill was called "unnecessary" and "anti-mining" by mining industry lobbyists.
And that's why we need your help.
Together, we can start a needed conversation about the best way to address the risks that copper-nickel mining poses to our water and our communities - but we also need the resources to do it.
We've officially survived the 2019 legislative session but are still on standby as we wait to hear what's planned for a special session later this week, or maybe next - who knows? Like the weeks leading up to this point, it's still a trying time for our team filled with anxiety and low information. Much of what's happening remains out of sight, behind closed-doors, and therefore frustratingly hard to influence.Yet this is still the time that matters most because everything is still on the table even though the constitutional adjournment deadline has passed.
Thankfully this change in pace the last few days has made it a good moment to get re-grounded in what matters - the work we've accomplished this session together.
Together, through our legislative staff's lobbying efforts, our legal team's expert testimony, and your energy to contact your legislators when the stakes were high, we've:
Pushed for the first bill signed into law by the Governor, fixing a raid that MCEA had sued to stop: To recall, House File 80 fixed the 2018 raid on the Environment and Natural Resources Trust Fund in response to MCEA's lawsuit challenging the raid. Since then, we have worked to defend against other unconstitutional appropriations from the fund in this year's budget bill.
Introduced a bipartisan bill to improve Minnesota standards for mine tailings dams at copper-nickel mines (HF 2872/SF2873 authored by Rep. Steve Sandell, DFL-Woodbury, and Sen. Paul Anderson, R-Plymouth)
Introduced a bill to provide financial assistance to private well owners whose wells are polluted by nitrates and agricultural chemicals (HF 2666/SF2827 authored by Rep. Todd Lippert, DFL-Northfield, and Sen. Jason Isaacson, DFL-Vadnais Heights)
Defended Minnesota's environmental laws day in and day out - including attacks on public input periods, exemptions for industrial polluters from air and water quality standards, and provisions that would prevent the adoption of stronger water quality standards even if science shows they are needed.
Yet it's still possible for there to be more news, both good and bad, over the next few days or even weeks. That's why our legislative work continues until the very end of both the regular and special session to convey the urgent need to fully fund environmental agencies, prevent rollbacks on environmental policy, and defend voter-approved environmental funds. If we're not there applying that pressure, they won't do it. That's why our team will keep working at the Capitol to ensure a fair end-of-(special) session deal for our environment that is grounded in law, science, and research.