The PolyMet bill: Rep. Nolan’s war of choice on Minnesota’s waters

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In early July, 8th District Rep. Rick Nolan introduced HR 3115, a bill to force the completion of a highly controversial land exchange between the U.S. Forest Service (USFS) and PolyMet Mining Corp. Nolan’s bill would fast-track the land exchange, requiring that it be completed within 90 days of the bill becoming law, even though no permits have yet been issued for the company’s proposed NorthMet mine. The bill would give PolyMet 6,650 acres of protected Superior National Forest (SNF) and pave the way for construction of PolyMet’s open-pit copper-nickel sulfide mine.

PolyMet’s sulfide mine would be the first ever to be permitted in the state. Minnesota Gov. Mark Dayton has said that “this type of mining creates highly toxic sulfide waste.”

The federal lands at risk are a combination of forested wetlands, public waters, and critical wildlife habitat. At least 1,000 acres of irreplaceable wetlands would be destroyed and up to 8,000 acres impaired by the mining. These wild and remote lands contain Aquatic Resources of National Importance (ARNI), an ecosystem that is designated as “imperiled-vulnerable” in Minnesota, and an area most of which is rated as of “high biodiversity significance” by the Minnesota Biological Survey. The mine would also destroy critical habitat for Canada lynx and gray wolf, creating toxic sulfide mine waste, enormous waste rock stockpiles, roads and other mining infrastructure. Most of the damage would be permanent. According to Marc Fink, senior attorney for the Center for Biological Diversity, “This bill is a blatant end run around current laws to hand Superior National Forest land over to a mining corporation. It should be stopped in its tracks.”

Nolan’s bill was introduced to override four separate legal actions by environmental groups and affected citizens who are challenging the land exchange in court. Political leaders have continually assured the public that we can rely on PolyMet’s environmental review process and that PolyMet would only be permitted if it would not harm the water and environment. But as soon as legal challenges appeared to have merit, Nolan authored a bill to prevent those suits from going forward.

By moving to bypass the judicial process, Nolan is denying his own constituents, as well as the citizens of his state and nation, due process under the law. Impacted citizens and groups have the legal right to challenge federal agency decisions under numerous laws, including the National Environmental Policy Act (NEPA).

NEPA, signed into law in 1970, is referred to as the “environmental Magna Carta.” NEPA requires governmental agencies to assess the environmental and related effects of proposed actions through the preparation of environmental impact statements. Enforcement of the NEPA process is by a citizen suit provision, meaning any citizen can bring a lawsuit against the responsible federal agency for violation of NEPA. Nolan’s version of environmental review eliminates the right of citizens to question or challenge a federal regulatory decision. 

The value of public land

HR 3115 would override the NEPA process, the Administrative Procedures Act (APA), the Weeks Act, the Endangered Species Act, and other legislation that allows for public recourse as part of environmental review and protections. Of significant concern is that the public land of Superior National Forest belongs to the citizens of the United States and was set aside for their use and enjoyment, as well as watershed protection, now and into the future. Yet public interests are forgotten in Nolan’s legislative initiative, while foreign mining companies — Canadian PolyMet and Swiss multinational conglomerate Glencore — will reap the benefits, destroying our land for future use and poisoning our water. Kevin Lee, staff attorney at the Minnesota Center for Environmental Advocacy (MCEA), stated, “Rep. Nolan’s bill is a giveaway of public land, plain and simple. It is a windfall for PolyMet and a swindle of public land users who use public land for hunting, fishing, and recreation.”

The land sought by PolyMet for its proposed open pits was originally purchased by the USFS under the Weeks Act of 1911 for the purpose of protecting the rivers and streams of the headwaters of Lake Superior, an internationally important watershed. Open-pit copper mining is not allowed on the Superior National Forest under the Weeks Act. Rather than saying ‘no’ as dictated by law, and protecting the irreplaceable natural resources of the Forest, the USFS agreed to trade public land to PolyMet for its mine. Both our federal agencies and our politicians are eroding away our citizen rights in favor of corporations.

Lori Andresen of the northern Minnesota-based group Save Our Sky Blue Waters states, “In authoring a bill to fast-track PolyMet’s destructive mine on protected public lands, Rep. Nolan is endorsing an extremely dangerous practice. Rep. Nolan undermines our democracy by placing corporate special interests ahead of the public interest by attempting to subvert current laws and legislate away due process and the constitutionally created right to have one’s day in court. Nolan’s political intervention for a foreign mining company demonstrates that the laws and environmental protections of our nation don’t apply equally to powerful multinational corporations and affected citizens.” 

Nolan is concurrently lobbying the Trump administration to reverse course on the Obama administration’s denial of federal mineral leases for the Twin Metals sulfide mine near Ely and the Boundary Waters. The Twin Metals mine could be jump-started through federal legislation, similar to what Nolan is trying with the PolyMet bill.

Environmental injustice for those downstream

Our politicians and corporate-controlled agencies are playing roulette with our water and our people, pitting promised mining jobs against those who live downstream, against those who value and need water as a precious natural resource in its own right, and those who wish to protect future generations from tailings basin disasters, water pollution, and cleanup costs. The largest human population in northeast Minnesota lives downstream of the proposed PolyMet mine and tailings basin. This includes the Fond du Lac Indian Reservation, as well as the cities of Cloquet and Duluth (and Superior, Wisconsin).

The major tailings basin disasters of Canada’s Mount Polley in 2014 and Brazil’s Samarco in 2015, whose toxic waste flowed over 400 miles downstream, clearly demonstrate that large-scale mine dam failures are not only possible, but likely. This is especially true when dealing with the large amounts of waste rock resulting when mining massive low-grade deposits — in PolyMet’s case, less than 1 percent mineralization, meaning 99 percent waste rock. PolyMet’s own environmental impact statement concedes that water from PolyMet’s mine site would need to be treated for at least 200 years after closure, and the plant site for 500 years. PolyMet could have been stopped on this issue alone. The fact that the project is in the permitting stage is clear evidence of political and regulatory capture by mining interests.

Corporate vs. citizen power

Nolan is willing to take away citizen rights while leaving behind a legacy of destruction of the land and pollution of the water for all future generations. The next question is this: Will Sens. Amy Klobuchar and Al Franken and others support Nolan’s actions? In February 2017, a Minnesota Environmental Partnership (MEP) statewide poll showed that 74 percent of those polled opposed the PolyMet mine [PDF]. 

Call your members of Congress now to let them know you oppose H.R. 3115, asking them to withdraw any support of the bill. You can look up contact information here. Contact Minnesota Gov. Mark Dayton and let him know that you oppose PolyMet’s sulfide mine. All of Minnesota’s waters deserve protection from highly toxic sulfide mining, including the Lake Superior, Mississippi River and Rainy River watersheds. For more information go here.

Elanne Palcich, a retired elementary school teacher, lives in Chisholm, Minnesota. A version of this commentary appeared in the Duluth Reader.

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