A Big Year for the Environment, and MCEA, at the Minnesota Supreme Court

December 30th, 2020

MCEA Chief Legal Officer, Kevin Reuther

There’s no question, as we look back, that 2020 was a stand-out year: An historic Presidential election that defeated an administration hellbent on environmental rollbacks; the George Floyd uprisings — a wake-up call from our hometown that brought new clarity and urgency to the central role justice and equity must have in our work; a world-wide pandemic that left MCEA staffers, like many of you, working remotely, concerned for their health and the health of their loved ones.

And in the midst of all this, it was a year of unprecedented accomplishment for MCEA’s legal team. 

MCEA’s lawyers briefed and argued three separate cases before the Minnesota Supreme Court in 2020. We filed briefs as amici (“friends of the court”) in three additional cases. 

That’s a lot of cases for a single year. 

Minnesota’s highest court doesn’t take environmental cases very often. In fact, I can count on one hand the number of cases involving key environmental laws or issues that the Minnesota Supreme Court has decided since I joined MCEA in 2005. Unlike the lower courts, the Minnesota Supreme Court, which provides discretionary review, simply hasn’t opined much on environmental law in recent years. Until now. 

Cases Address Key Issues of Mining and Climate Pollution

Of MCEA’s three cases before the highest court, two involve challenges to permits issued for PolyMet’s controversial proposal to mine low-grade sulfide ore upstream from the Fond du Lac reservation and Lake Superior -- a project that, if built, could discharge toxic water pollution for 500 years. MCEA has been working in opposition to this mining project for many years because, as proposed, it presents unacceptable risks to Minnesota’s waters, other natural resources, and downstream communities. You can read about our work on PolyMet here.

The other case involves a proposal by the Duluth utility Minnesota Power to build a new fracked gas power plant in Superior, Wisconsin. Despite the increasingly urgent need for climate action and the fact that renewables like wind and solar are less expensive, Minnesota Power wants Minnesotans to spend the next 40-plus years paying for a new fossil fuel plant in Wisconsin. Climate justice demands a different path. Read more about Minnesota Power’s misguided proposal here.

For now, MCEA’s advocacy has stopped both PolyMet and the Minnesota Power fracked gas plant in their tracks. Decisions from Minnesota’s highest court, which we expect in 2021, will determine what happens next.

Cases Will Set Important Precedent

At issue in these cases is not only the future of PolyMet and a new fracked gas plant. What the Minnesota Supreme Court decides will impact many environmental cases to come. MCEA lawyers are fighting for legal precedent that will extend into the future.

For example, in the PolyMet permit-to-mine case, the Court will decide how state agencies should interpret mining regulations — not just in the case of PolyMet, but for every new sulfide mining proposal, including the Twin Metals proposal to mine in the Boundary Waters watershed. 

The Court will likewise determine, for large controversial projects, who is entitled to ask for a hearing before an impartial fact-finder with cross examination of the project’s witnesses and experts (a “contested case” hearing), and when a state agency permitting such projects has to allow for such hearings. (In the case of PolyMet, the DNR denied the request for a contested case hearing, despite reams of evidence and expert opinion questioning the project and screaming out for independent review.) 

If the Court sides with the public’s right to such a hearing, it will reset the balance between those of us fighting for the public interest and the well-financed private interests who currently wield enormous power with the agencies that are supposed to regulate them. 

Our case challenging PolyMet’s air pollution permit will similarly result in key court precedents. Throughout the country, clean air advocates and industries that spew air pollution are waiting for this decision. The facts show that PolyMet intends to build a much larger mine that it proposed. But the Minnesota Pollution Control Agency ignored those facts and issued an air pollution permit anyway, contrary, we argued, to Clean Air Act regulations. The decision in this case will have repercussions nationwide, affecting all agencies that permit air pollution and, importantly, all industries applying for air pollution permits.

We Are Committed

All this work wasn’t easy. Especially in a pandemic.

Our lawyers filed six briefs in the Supreme Court this year. That’s more than 200 pages of dense legal argument. Our briefs cited hundreds of legal authorities — cases, treatises, and law review articles that we read, digested, and turned into the building blocks of persuasive legal theories. Lead attorneys on each case benefited from input from a team of other lawyers, including several attorneys in private practice who donated their time pro bono, from the support of our two Legal Assistants, from the 10 law clerks we employed in 2020, from our Legal Fellow, and from the expertise of our Legal Committee and our Science Advisory Council. And we benefited enormously from the collaboration with our partners and co-litigants. For all of it, I am very grateful.

As we look to 2021 we are hopeful that the new year will bring ground-breaking wins for the environment. Either way, MCEA will not waver from our commitment to fight for justice, for communities, for the health of Minnesotans, and for the protection of our shared natural resources.