The MCEA effect

This year marks MCEA’s 50th anniversary. As we reflect on our efforts, our work to stop PolyMet rises to the top of the list. It’s been twenty years since PolyMet first proposed building a sulfide mine at the headwaters of the St. Louis River in Northeastern, Minnesota. MCEA’s been involved from the start. 

At the time, MCEA, like the rest of the state, didn’t know a lot about the differences between mining for copper and nickel versus mining for iron-ore and taconite. But here’s what we did know: the risks to downstream communities and our water-rich environment were novel, distinct, and substantial, and that any attempt to unearth Minnesota’s copper-nickel deposits should involve robust vetting. We also knew the response to PolyMet’s proposal - the first of its kind in our state - would be precedent setting. In other words - we knew Minnesota had to get this right. 

What we observed instead were the company and our state agencies rushing the proposal through the environmental review and permitting process. The result was a collection of weak  permits that would have permitted PolyMet to destroy the largest acreage of wetlands in our state’s history and pollute the St. Louis River, Lake Superior, and our groundwater into perpetuity with hundreds of thousands of gallons of acid mine drainage. 

Thanks to MCEA and our allies – Fond du Lac Band of Lake Superior Chippewa, Friends of the Boundary Waters Wilderness, WaterLegacy, Duluth for Clean Water, and many others – none of that has happened. Instead, PolyMet’s permits have been suspended, stayed or overturned in court, and the company is further today than ever before from breaking ground on its risky mine proposal. 

(Image: Supporters attending the oral argument at the Minnesota Court of Appeals, October 2019)

Our work is far from over, but keeping this proposal at bay for two decades is a significant victory. It took the work of everyone to achieve it, and each member of the coalition has been critical. To mark the 20th year of our investment in this work, we asked experts and attorneys from our PolyMet team to reflect on the distinct role MCEA has played in the fight. 

MCEA’s Director of Strategic Litigation, Kevin Ruether; former leading PolyMet attorney, Ann Cohen; director of MCEA’s Northeastern Minnesota program, JT Haines; and current PolyMet attorney, Joy Anderson, all weighed in on MCEA’s unique contributions. 

Below is a collection of some of their thoughts on the MCEA effect in the PolyMet fight. 

Letting the science lead us 

MCEA did not start out opposing PolyMet’s proposal. We started out wanting to understand it. We hired experts, met with the company, visited the proposed mine site, and dug into the science. Our findings informed our position, which was that PolyMet’s proposed upstream dam design posed a significant risk to downstream communities, and that its plan to contain the significant acid mine drainage it would create pollution it would create wouldn't protect our waters. 

“We knew from the start that the metals PolyMet wants are dispersed and that they’d be very hard and very expensive to get at in a way that didn’t harm the environment,” Ruether recalled. “The more we studied PolyMet’s proposal, the clearer it became that it was insufficient.” 

“I don’t question our position one bit,” Ruether emphasized. “If PolyMet proceeds with its proposal, there will be environmental harm.” 

Educating and galvanizing the public 

MCEA also knew the public needed to understand the stakes, and that far too many people were mistakenly lumping PolyMet’s proposal in with Minnesota's long taconite mining history. MCEA launched a multi-million dollar public awareness campaign called Mining Truth with partners Conservation Minnesota and Friends of the Boundary Wilderness back in 2012. It ran for five years and led to a groundswell of public opposition to PolyMet’s plan, resulting in over 58,000 public comments filed on the PolyMet environmental review in 2014. Ninety-eight percent of these comments opposed PolyMet’s proposal. 

(Image: MCEA's JT Haines and Aaron Klemz delivering nearly 20,000 public comments opposed to the PolyMet permit to mine, February 2019)

“Sulfide mining is a whole different ballgame, and it was a foreign concept at the time,” Ruether said. “We knew how important it was that the public understood what this was… That included judges and the people who work at stage agencies. They read the newspapers, too. They see the billboards. Our campaign brought the issue to the forefront and made it a controversy.” 

Slowing down the process

MCEA’s early advocacy coupled with the exhaustively researched comment we submitted on PolyMet’s Environmental Impact Statement (EIS) caught the attention of the Environmental Protection Agency (EPA), which was a game-changer, recalled Ruether. 

The EPA wound up agreeing with many of the concerns raised in our comment, and sent PolyMet back to the drawing board. 

“PolyMet was no longer able to rush it through the way it had hoped to,” Ruether said. “That’s because MCEA was there at the beginning, at a time when very few other organizations were actively involved.” 

Resourced to win 

Everyone interviewed attributed MCEA’s deep bench of attorneys, our credibility as a science-based law organization, and the resources our supporters have given to fuel our work as distinct within the coalition. 

“Sometimes a fight needs five attorneys and not one,” JT Haines said. “MCEA has those kinds of resources.”

(Image: MCEA attorneys at the Minnesota Court of Appeals, October 2019)

“Our resources have allowed us to look at the big picture and really coordinate a multi-faceted campaign that’s applied political pressure, as well as pressure in the courts and at the agencies,” Joy Anderson added. 

MCEA’s institutional support also helped organize early grassroots opposition to the proposal, particularly in the Duluth area, Haines added. 

“We provided the structure for how to submit public comments, how to organize turnout for the public events, how to navigate all the legal filings… that was and continues to be a really unique and essential role for MCEA,” Haines said. 

Ann Cohen put it like this: 

“You have to have experts who can advise on the issues and bring factual credibility to your concerns, and then the lawyers who can bring the law to bear. MCEA brings that one-two punch. We have connections to the scientific community, the resources to hire the right experts and the attorneys on staff to deliver.” 

Pursuing “any legal avenue … to stop it”

Once MCEA understood the severity of the risks posed by PolyMet’s proposal, we started looking for “any legal avenue we could find to stop it,” Ruether said. 

“We reviewed every decision made by state and federal agencies on the permits and identified errors that were made and brought them to court,” Ruether said. 

He pointed to our appeal that PolyMet engaged in “sham permitting” on its air permit as a case that started to build distrust against the company.  

When state agencies failed to respond to our concerns with the permits, MCEA identified agency procedural errors like not granting a contested case hearing on the proposal and Minnesota Pollution Control Agency’s decision to discourage the Environmental Protection Agency from publicly commenting on PolyMet’s water permit, Cohen said. 

We also surfaced legal errors like the decisions to permit a tailings basin design that discharged pollution directly into groundwater and issuing a permit-to-mine that lacked a term limit despite state and federal laws. 

The onslaught of challenges allowed time for key facts to emerge. When MCEA and our allies won a stay that suspended the PolyMet permit to mine in 2019 this  allowed for the bigger and more devastating blows that came later, like the eventual overturning of the permit to mine, the Fond du Lac’s Band’s win on the federal wetlands permit, and the water permit win at the Minnesota Supreme Court. 

Taking stock; setting precedent

Twenty years later, PolyMet cannot move forward as it has proposed. The company now admits its design is out of compliance with global mining standards, and recently said it plans to undergo a study to determine if it should change its plans. Meanwhile, MCEA and our allies' work in the Contested Case Hearing continues with a final decision from the DNR expected in the coming months. 

“This has been very complex work with long odds against a massive company and so far we’ve done it,” Haines said. “We’re in it for the long haul. We always have been.” 

(Image: Mining Truth billboard outside Minnesota DNR headquarters, June 2018)

Our coalition has also better position our state for future sulfide mining attempts that are  following PolyMet, Cohen said.

For example: now mining permits require a fixed term; direct discharges of industrial waste to groundwater require a variance; agencies that attempt to hide critical comments from the public will be in clear violation of the Minnesota Administrative Procedures Act, and agencies must ensure discharges meet tribal water quality standards.

The CEO of another proposed sulfide mine (now known as Twin Metals at that time owned by Duluth Metals) once famously called PolyMet the “snowplow” mine, since the precedents set by the permits would supposedly clear the path for other proposals to follow. But thanks to the good precedents we’ve won, that’s no longer the case.

“Agencies can no longer just say “we want to give permits to these mines for economic reasons so we’ll just pretend all these environmental problems don’t exist,” Anderson said. “They actually need to do their job and regulate these proposals when they come in. Otherwise, now they know the consequences.”