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Killing an opportunity to finally resolve the issue of mining near the BWCA

You kind of have to admire, if only grudgingly, the sly elegance of last Friday’s about-face on environmental review of prospective precious-metal mines at the edge of the Boundary Waters.

You kind of have to admire, if only grudgingly, the sly elegance of last Friday’s about-face on environmental review of prospective precious-metal mines at the edge of the Boundary Waters.

With a matched set of press releases, the U.S. Forest Service and the Interior Department scrapped a decision to conduct a thorough scientific analysis of potential damage from such mining — which has never been done anywhere without major harm, and would surely threaten this especially sensitive watershed.

The now-scrapped examination was of a form familiar to Americans; it’s the one that produces an environmental impact statement, or EIS. The process takes a long time and generates a lot of information; see, for example, the years of analysis and re-analysis over PolyMet Mining’s NorthMet project near Babbitt and Hoyt Lakes, in the Lake Superior watershed.

Which is as it ought to be, because an EIS is ordered only when a lot is at stake.

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When not so much is at stake — if a proposed project is comparatively small and well understood, and its impacts are locally contained, but some harm is possible — then the law requires a much more cursory Environmental Assessment (EA).

Typically the main objective of an EA is to make sure that likely damage is being assessed accurately, not underestimated. Typically, too, eventual approval is a foregone conclusion. For example, EAs in the news this week concern a bridge replacement and a crude oil pipeline in Louisiana, expansion of a rail yard in the Chicago suburbs — that sort of thing.  

These projects aren’t necessarily good or benign, mind you. And they have their foes, which is why they were in the news.

A century of industrialization

But neither are they in the same league with, for example, the city-sized mining project that Twin Metals Minnesota has outlined conceptually for development of its mineral rights at Birch Lake, at the edge of the Boundary Waters Canoe Area Wilderness (BWCA). Or additional projects by TMM and other players that the companies claim could add up to a century or more of digging, crushing and shipping ore in a vast industrialized band alongside this national treasure of wild lakes and woodlands.

Which is where Friday’s decision has placed them, with reasoning that can charitably be described as cute:

  • The agencies claim the question before them is not, as the original EIS order framed it, whether future mining activity would be impermissibly harmful in this area, and should therefore be blocked by “withdrawal” of 234,000 sensitive acres from portions of the Superior National Forest where mineral production is potentially allowable. (No mining is allowed within the BWCA, which contains a bit over 1 million of the Superior’s 3.9 million acres.)
  • Rather, it’s whether there would be significant negative impacts from a two-year moratorium on mining activity, begun last January when the EIS was ordered and the withdrawal formally proposed. Obviously the answer is no, but the feds followed the required process in giving citizens a chance to come up with some, which they did not.

The answer to that first question, however, seems quite likely to be yes, based on the whole of our national experience with this industry.

The American West, especially, is liberally pocked with mothballed or simply abandoned mines that have become perpetual and/or permanent sources of acid drainage and heavy-metals pollution to streams and groundwater.

Most of that harm is on landscapes that are steeper and drier than the Boundary Waters, whose wet and low-lying character only makes it more vulnerable.

Nevertheless, in a more than century of protecting the canoe country’s resources from one threat after another, the problem of mining has proved easy to kick down the road through wax-and-wane cycles of industry interest, with the waning periods predominant.

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An opening for resolution arose in 2013 when TMM sought to renew lapsed leases on minerals at the Birch Lake site. Such leases often carry renewal rights that are automatic but not unlimited, and can change when reissued.

And, indeed, the leases held by TMM had carried such renewal rights from 1966 up till 2004, according to an analysis by the Interior Department that was issued in March 2016.

However, the 2004 leases did not include such rights. After TMM let them lapse, the analysis concluded, the feds had discretion to renew them or not — and, more important, to make that decision in light of modern environmental law, rather than the minimal standards in place when they were issued in 1966.

Renewals denied

In December 2016, as the Obama administration wound down, the departments of Interior (whose Bureau of Land Management administers the leasing) and Agriculture (which includes the Forest Service) issued their decision: no new leases, and a move toward withdrawing the 234,000 acres from mining activity for the next 20 years. (That’s the maximum term for withdrawal by administrative action; only Congress can make public land permanently off-limits.)

TMM threatened to sue, of course, and eventually did. Also eventually, and to nobody’s surprise, Ryan Zinke’s Interior Department decided to renew the leases after all. Sonny Perdue’s Forest Service — notwithstanding the secretary’s telling a confirmation hearing that EIS-level review of future mining was an important step in getting to the right decision — decided the abbreviated alternative of an EA would do just fine.

The outlook from here is grim, no question. The timetable, according to the Forest Service announcement, is to complete the EA by the end of 2018, and to reach a decision on the withdrawal next January, just before the mining moratorium ends.

Oh, and they’re taking another round of public comments, on the decision to scale back the review, through the end of this month; these can be submitted online here.  As of midafternoon yesterday, about 650 comments had come in, heavily against the change by my count — which will make no difference whatsoever.

I once asked TMM’s public relations guy, Bob McFarlin, if it wouldn’t be in his company’s interest to support a full, EIS-style review of mining’s overall appropriateness in the watershed before investing so heavily — some $400 million so far, according  to the company website — in a project that ultimately might fail to fly, given the fragility and national stature of the Boundary Waters.

All he would say is that the company fully supported the existing project-by-project review process and saw no need for another layer. The reality, I think, is that mining companies have long experience gaming the piecemeal process and the agencies that administer it, and don’t much worry about being denied their own sweet way.

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For a brief while in 2016, though, that presumption looked suddenly and surprisingly shaky. It seemed possible that this longstanding conflict might finally be resolved.

But a new administration has put things back on the same old, bad track, headed for an ultimate resolution that probably won’t come for many years, almost certainly in court.