The Supreme Court’s PolyMet Water Permit Decision
Written by MCEA Staff
Water has always been a central issue in the fight against PolyMet. Despite the company’s assurances to the contrary, the Minnesota Supreme Court has affirmed what we’ve known from the start: PolyMet’s proposed sulfide mine would pollute clean water. In its recent August 2, 2023 decision, the Court found that the water pollution permit issued to PolyMet by the Minnesota Pollution Control Agency (MPCA) would not protect clean water – validating what MCEA, the Fond du Lac Band, citizen groups, government transparency groups, law professors, and a public sector union have been saying for years.
This key permit – also known as a “National Pollutant Discharge Elimination System” or “NPDES” permit – is issued under the Clean Water Act. A strong NPDES permit would provide enforceable limits on pollution and a clear response if pollution were to occur. The water pollution permit issued by the MPCA to PolyMet in 2018 was not a strong permit.
Throughout the permitting process, federal oversight staff at the Environmental Protection Agency (EPA) raised concerns about PolyMet’s potential for water pollution. Unfortunately, as was detailed by unprecedented investigations into MPCA’s conduct, we now know that our own MPCA sought to suppress these concerns by preventing EPA scientists from submitting written comments into the public record.
Five years later, after litigation across all levels of Minnesota’s courts, the state’s highest Court issued its final decision about the PolyMet water pollution permit. It’s one of the most consequential legal decisions for Minnesota’s environment in a generation. Here are five things to know about this momentous case:
1. Citizen groups and federal employee union raise red flags on shady agency behavior
During permit proceedings, MPCA asked EPA to withhold from the public record their concerns about the enforceability of water quality standards in PolyMet’s permit. MPCA requested that EPA staff read their comments over the phone so that they would not become part of the public record. MPCA erased emails about this request and discarded notes from its meeting with EPA – findings detailed by Judge John Guthmann after an important evidentiary hearing in January 2020 at the Ramsey County District Court.
Minnesotans learned about this suspicious activity by its MPCA only after a courageous leak from AFGE Local 704 union members at EPA. EPA’s own Office of Inspector General investigation into the matter later on found that its management “botched” its oversight responsibilities in this case. EPA has signaled in this OIG report that, if granted the opportunity to participate in a new public comment period, it would submit its concerns in writing.
In 2022, the Minnesota Court of Appeals issued a mixed ruling in this case. That court reversed and remanded the permit due to the impacts of groundwater discharge to surface water, but declined to impose legal consequences for MPCA’s suppression of EPA’s concerns. In response, MCEA (representing itself, Friends of the Boundary Waters, and the Center for Biological Diversity) appealed to the Minnesota Supreme Court, along with allies WaterLegacy and the Fond du Lac Band. The largest federal union in the country (AFGE 704), local law professors, and others joined the case as amicus curiae (friends of the court), arguing that MPCA’s actions infringed on core democratic values and the public’s right to access government data.
2. Supreme Court decision sets precedents for transparency and groundwater
On August 2, 2023, the Minnesota Supreme Court ruled that MPCA violated state law when it suppressed EPA’s concerns about PolyMet’s water pollution permit. The Court explained that MPCA’s conduct was arbitrary and capricious, and that “MPCA did not genuinely engage in reasoned decision-making in dealing with concerns that were raised by the EPA.”
This precedent-setting win makes clear that state agencies must not selectively shield information gathered during public processes to hide criticism of a proposal, and it recognizes that how agencies act matters in terms of the strength and validity of permits. It’s worth underscoring how rare this is – courts nearly always defer to state agency judgments. Decisions like this only happen when the Court is convinced that the agency, in this case the MPCA, has “exercised its will, not its judgment.”
“Unfortunately in the case of PolyMet, our state MPCA violated the public’s trust, and state law, when it suppressed crucial scientific concerns about the water permit,” said Joy Anderson, senior staff attorney for MCEA, of the high court’s ruling. “This decision is important not only for the PolyMet case, but to ensure that when our state agencies make any decision that affects Minnesotans, they do so openly and fairly.”
The Court also found that PolyMet’s plan to pollute groundwater at the mine facility violates Minnesota rules. State rules call groundwater "a natural resource of immeasurable value which must be protected as nearly as possible in its natural condition." Yet PolyMet designed its facility with total disregard of this rule, assuming it had the right to pollute thousands of acres of this invaluable public resource. The Court, in response to MCEA's arguments, found that this plainly violates the law.
3. Court speaks powerfully to Tribal rights
In a concurring opinion – a statement that agrees with the result of the case, but provides an alternative or additional rationale – Justice Anne McKeig along with a majority of the justices called out MPCA for its failure to treat the Fond du Lac Band with the respect required by treaties and federal law. In Justice McKeig’s words, MPCA’s actions constituted a “serious disservice” to the Band. She continues, “[t]he Band’s interests were an afterthought here—discounted by those with the responsibility and power to ensure compliance with the Band’s standards.”
In other words, MPCA must ensure compliance with the Band's water quality standards, which are legally enforceable against upstream dischargers. Under federal law, the Band's treatment-as-a-state status means "MPCA cannot legally issue a permit that fails to ensure compliance with the Band’s standards."
4. What’s next? MPCA must reopen process and PolyMet must go back to the drawing board
This decision deals another critical blow to PolyMet, which also saw its Section 404 federal wetlands permit revoked earlier this summer by the U.S. Army Corps of Engineers. As it stands, PolyMet does not have multiple permits it would need in order to move forward. And these permits, in combination, address every aspect of PolyMet’s proposed mine – the mine site where wetlands would be destroyed, and the processing site where polluted water would be released.
Following this most recent court ruling, MPCA must now reopen the record to allow EPA to submit written comments. This is the first time MPCA will be required to respond publicly to EPA’s concerns. The concerns that have been brought to light during this process indicate a major change to the water pollution permit would be needed to comply with the Clean Water Act. These are not mere quibbles, as Justice Anne McKeig wrote:
“The EPA raised more than mere concerns with the MPCA’s draft permit; the EPA identified specific inadequacies that, if left in the final permit, failed to protect the [Fond du Lac] Band’s standards.”
Justice McKeig’s analysis is specific to the Fond du Lac Band’s standards, but it is also more generally true that EPA’s criticisms of the permit will require far more than minor changes.
For its part, in order to comply with the Supreme Court decision, PolyMet would have to address the groundwater contamination issue. That would mean: a) changing the design of the proposed tailings basin to prevent groundwater pollution, or b) obtaining a variance from MPCA, which would grant permission to pollute groundwater despite the prohibition in the rule. MCEA and other clean water advocates would strongly oppose the latter option. Additionally, because of the earlier Court of Appeals decision, MPCA must also conduct an analysis to determine whether PolyMet’s pollution of groundwater is the “functional equivalent” of directly polluting surface waters (the “Maui” test).
5. PolyMet, as currently proposed, is not going to be built
PolyMet’s proposed sulfide mine violates federal wetlands laws, state rules protecting groundwater, and the water pollution permit was issued illegally. The time has come for a new conversation, for the sake of our water and our trust that state agencies are making decisions based on science and the law. Fortunately, there are better alternatives to PolyMet’s mine proposal, and we should focus our energies there.