November 2020 MCEA Newsletter

In this edition of MCEA's Environmental Monitor:

- MCEA argues against sham PolyMet air permit at MN Supreme Court

- MCEA legal team adds new expertise

- Limbo Creek remains in Limbo — Star Tribune takes on the story

- Give to the Max Day 2020 is LIVE — take advantage of the 2x match now!

- An interview with Nancy Schuldt, the Fond du Lac Band's Water Projects Coordinator

Last Thursday, November 5th, MCEA Attorney Evan Mulholland presented oral arguments before the Minnesota Supreme Court on the air permit issued to PolyMet Mining. The argument, which was live streamed and is available to watch here, was the culmination of two years of litigation by MCEA and allies that won a decision returning the air permit to the Minnesota Pollution Control Agency to investigate whether PolyMet engaged in “sham” permitting -  receiving an air permit for a much smaller operation that it intends to build. 

In 2018, just 10 days after the public comment period ended on the air permit issued to PolyMet by MPCA, PolyMet published a report for Canadian securities regulators. This report showed that PolyMet planned to expand the operation to a much larger and more polluting operation. The Environmental Protection Agency (EPA) classifies this behavior as “sham permitting.” In early 2020, MCEA won a Court of Appeals decision requiring the MPCA to investigate the evidence of sham permitting. Last Thursday, MCEA defended this decision at the Minnesota Supreme Court.

But this case is about more than just PolyMet or MPCA. Our win at the Court of Appeals and our argument at the Supreme Court has nationwide implications. Not only would a win at the Minnesota Supreme Court create legal precedent, but as Keri Powell of the Environmental Integrity Project pointed out in MCEA’s After the Argument webinar: 

“Something really important is how a case like this can change industry behavior. Very few air permits in this country are actually scrutinized by the public — it’s very complicated, tricky... For permits like these, you [the public] don’t necessarily always even get the opportunity to comment. So, what you really want to see is the industry behaving differently. And, when the industry knows their permit might get stalled, remanded, and construction delayed because questions come up as to whether they are trying to circumvent new source review and build a major source under minor source requirements, there is a really good chance that if that’s the road they are going to go down, they would instead apply for a major source permit at the beginning. And that’s what you really want to see here: a change to industry behavior so you achieve widespread compliance.”

With the conclusion of oral arguments on this case MCEA awaits rulings by the Minnesota Supreme Court in two cases on key PolyMet permits. The court has no deadline to make a ruling, but we expect decisions on both the air permit case and the permit to mine/dam safety permit case in the first half of 2021.

Thank you to our supporters who joined Keri Powell, MCEA’s Chief Legal Officer Kevin Reuther, Senior Attorney Ann Cohen, and Evan Mullholland for the After the Argument webinar last week. We offer this series of webinars as donor-exclusive content to show our appreciation to our financial supporters that make all of this legal work possible. If you would like to watch live and ask questions directly to our legal experts at the next webinar, please consider becoming a financial supporter of our work. We made a recording of last Thursday’s webinar available online for anyone to check out — click here!

Thanks to your support, MCEA's legal team continues to grow

Not long ago MCEA often relied on pro-bono attorneys to litigate our cases. While we still receive occasional valuable pro bono assistance, thanks to thousands of Minnesotans supporting our work, our in-house legal team is stronger than ever. MCEA has thirteen lawyers on staff, the majority of whom are directly involved in litigation to protect our state’s people and environment — making MCEA the largest environmental legal advocacy organization in the state. 

In the past few months, we have added a new Staff Attorney and Legal Fellow to our ranks. Learn a little about them below. And, thank you again for making this all possible. Your investment in MCEA is an investment in clean water, clean air, and healthier communities for every Minnesotan.

• Jay Eidness, Staff Attorney

“I have always been happiest exploring the curiosities of untamed landscapes. For me, the beautiful chaos of nature is the tonic for the inevitable maladies affecting modern life. As an attorney with MCEA, I am committed to wielding my talent and experience as a skilled litigator in the fight for clean air, water, and soil."

Jay became part of our team this Summer. Prior to joining MCEA, Jay litigated wage theft cases on behalf of employees striving for proper wages and also clerked for Judge Ann D. Montgomery in U.S. District Court for the District of Minnesota. Jay serves on the board of SPAM FC - a local non-profit dedicated to offsetting rising college expenses - is a member of the Hennepin County Bicycle Advisory Committee, and co-owns an eco-tourism kayak guiding company on the Mississippi River. Jay holds a B.A. from St. John’s University and a J.D. from Vermont Law School.

• Stephanie Fitzgerald, Legal Fellow

"Facing the climate crisis takes all types of people. I'm not 'outdoorsy.' Given the choice, I would probably walk the urban core of a city before hiking a beautiful trail... I am motivated because I don't want my fellow man to suffer from catastrophic climate change. If I can work toward the goal of reducing suffering, I will consider my career successful."

Stephanie joined our team in September, 2020. She received her J.D. from Washington University in St. Louis and a B.A. in Sociology from Arizona State University. Stephanie worked and volunteered with various environmental nonprofits before joining MCEA as a Legal Fellow.

Give the Max 2020 is LIVE and we have a match to double your impact!

Give to the Max Day, the biggest giving day in Minnesota, is next Thursday, November 19th — but don’t wait until then to give! Thanks to generous support from our friend David Dayton, a $15,000 match is on the table. That means your dollar has x2 the impact in our work to hold state agencies accountable, advocate for climate action at the Capitol, continue our fight against reckless permits issued to PolyMet, and much more.

Thanks to this generous match, now is an excellent time to become a new financial supporter of MCEA, or for our stalwart donors, to grow your commitment to our legal and policy work to protect Minnesota’s environment for everyone who calls it home. 

“One of the last vestiges of what the landscape was,” Limbo Creek hangs in the balance and gets statewide coverage in the Star Tribune

The story of Limbo Creek, one of the last unaltered streams in Renville County, continues on. An otherwise relatively obscure (and appropriately named) waterway in the heart of Minnesota’s agricultural area has become a case study on the importance of agency accountability and bedrock environmental rulemaking like the Public Waters Inventory (PWI). After petitioning the DNR to re-add Limbo Creek to the PWI, the state's inventory of public waters, the County of Renville attempted to “beat the clock” and ditch this protected water before the public comment period on adding Limbo to the PWI closed. With no environmental study, and in the face of clear directives from the DNR to not proceed, Renville County appears to be dead set on digging out, ditching and straightening a portion of Limbo Creek. Permanently damaging Limbo Creek without properly studying the impact sets a dangerous precedent for Minnesota -- where ill-advised draining and tilling has led to massive erosion problems resulting in millions of dollars of downstream damage. 

Last Sunday, the Star Tribune published an excellent article covering the importance of Limbo Creek and how it ties into the future of hundreds of waterways across the state. In MCEA Senior Attorney Elise Larson’s words, who leads our work on Limbo, “Limbo Creek is one of the last vestiges of what the landscape was...If we’re not even going to protect the few waterways that remain, how are we ever going to tackle the issues facing the Minnesota River?”

The latest development in this saga, a strongly worded letter from DNR clarifying construction on the ditch cannot begin until an environmental study of the protected stream is complete, will likely end up in court. MCEA will be there to stand up for downstream communities, the Public Waters Inventory, and landowners along Limbo Creek and the Minnesota River. If you haven’t taken action already, please take a moment to add your name to the petition calling for the deserved protections of this public water. Take action now. 

Hear from Fond Du Lac’s Water Project Coordinator, Nancy Schuldt

In August, MCEA recorded a conversation with Nancy Schuldt, who for the last 23 years has served as the Fond Du Lac Band of Lake Superior Chippewa’s Water Project Coordinator. A shorter version of this interview was featured as part of MCEA’s Up North: LIVE from Duluth event during our multi-day online celebration, State of the Environment: Voices Driving Change.

From wild rice to treaty rights, we invite you to watch this 30-minute interview to learn more about the Fond Du Lac Band’s efforts to protect their rights and the beauty and abundance of the Lake Superior watershed. 

A very special thank you to Nancy for taking the time to speak with us.