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Environmental review in Minnesota: a brief history of its birth and decline

Contrary to what you may have heard, Minnesota’s Environmental Quality Board requires full environmental impact statements for only a handful of projects each year.

Minneapolis 1971
Robert Jacobson Photograph Collection/Minnesota Historical Society
Smog alerts in the Twin Cities were not uncommon in 1971.
Once upon a time, a Minnesota governor devoted one-third of his inaugural address to the challenges of environmental stewardship, and one-quarter of the bills introduced in the legislature for the year aimed to benefit the state’s natural resources. Notably, this legislature was controlled by the Conservative party, known nowadays as Republicans.

The governor, though, was a Democrat: Wendell Anderson, at 37 the youngest yet elected to that job anywhere in the United States.  The country was approaching its second Earth Day in 1971 when Anderson, having surveyed the ravages of industry and irresponsible development, called for a dramatic course correction:

Our first concern must be the preservation of what we have left of the natural resources that sustain our very lives…. We need a clear statement of environmental policy…. We must see that informed concern for the environment becomes part of all major government decisions…. If we err, let us err on the side of public health….  From now for as far into the future as we can see, we must preserve and protect.

It’s worth remembering that surge of progress, Peter Gove was saying on Wednesday afternoon at a meeting of the newly repopulated Minnesota Environmental Quality Board, and also the challenges that stimulated it: frequent smog alerts in the Twin Cities, barely treated sewage pouring into rivers and lakes across the state, DDT in the soil and water, “67,000 tons a day of taconite tailings being dumped into Lake Superior at Silver Bay.”

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Gove was Anderson’s chief environmental policy assistant and later his commissioner of the Pollution Control Agency (also his representative on the EQB, initially called the Environmental Quality Council).  Along with John Herman and Chuck Dayton, environment-minded public-interest lawyers of the time, he was invited to the EQB’s monthly meeting to give the incoming members an “architects’ perspective” on the birth and evolution of environmental review policies that made Minnesota, for a while, a progressive leader among the states.

The EQB was itself a key expression of that leadership and innovation, a collaborative of citizen experts and agency managers intended to develop big-picture, “cross-cutting” views of environmental challenges that weren’t getting enough attention because of organizational boundaries and other constraints.

Citizens outnumbered agency representatives 10 to five on the original panel; now it has eight seats for citizens (two of them vacant) and 10 for cabinet-level agency executives (all but two filled by new Walz appointees).

Among the EQB’s most important roles is to set the standards for environmental review of  projects at varying scales — and, especially, to order preparation of a generic environmental impact statements, or GEIS, that goes beyond the usual project-by-project assessments to consider regional or even statewide impacts of a particular industry or activity.

For example, the EQB is now considering whether to prepare a GEIS on agricultural nitrates tainting groundwater of southeastern Minnesota’s karst region, where the largely limestone bedrock has been made porous by fractures, sinkholes and caves.

This would be but the third GEIS in the board’s 48-year history, following assessments of potential logging expansion in 1994 and proliferation of large feedlots in 2002. A GEIS on frac-sand mining was blocked by the legislature in 2013; four years earlier, lawmakers refused to fund a GEIS on the costs of urban sprawl.

A board under pressure

If you’ve seen any news of the EQB in recent years, it likely was about Republican efforts to abolish it or to greatly reduce its staff (in the latter instance, with Democratic Gov. Mark Dayton’s assent). With declines in personnel and funding have come shrinkage of stature and, perhaps, purpose.

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But then much else has changed since its birth by executive order in 1971 and rebirth by legislative action two years later. Consider the achievements of a single day — May 21, 1973 — on which, Gove reported, Gov. Anderson signed not only the EQB measure and the cornerstone Minnesota Environmental Policy Act, but a dozen more:

They included the Wild and Scenic Rivers, Critical Areas, Power Plant Siting, Outdoor Recreation and Lower St. Croix River Acts; shoreland zoning and flood plain zoning mining reclamation; creating the Environmental Education program; ratifying the Leech Lake settlement; establishing a Commission on Minnesota’s Future and other provisions related to fish and game rules.  Another 10 bills on other natural resource topics were signed by the Governor that session.

The 1973 session was certainly the pinnacle of  environmental commitment by the Governor and Legislature to its citizens and future generations.

I’ll pause here as this piece has reached the point where I can hear some talk-radio huckster braying: Of course we don’t have so-called progress like that anymore, because all the bad stuff was fixed up, cleaned up, shut down long ago.

Not so. As Gove also observed, this was also a time when “aquatic invasive species were not yet on the radar, nor was ag runoff , or threats to groundwater.  The term ‘climate change’ was not in the vocabulary.” He could have gone on.

On the other hand, copper-nickel mining and its risks to the north woods were on the radar then—until, as Gove noted, crashing metals prices consigned them to history for a few more decades.

If anything, the problems of the 1970s were often simpler. Which is not to say easier: just that they tended to be more localized; more readily attributable to a particular source or wrongdoer; therefore more amenable to correction. Not GEIS material.

But what marquee challenge of today — Gove’s examples and sulfide mining included —  wouldn’t potentially justify a GEIS-scale review?

Short-circuiting review

Gove’s role in Minnesota government ended in 1977 (though he has remained deeply engaged in nonprofit  environmental work), so he left it to Herman and Dayton to discuss how EQB has performed over their years of legal practice.

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Herman was willing to issue letter grades: a B-minus on its management of environmental review standards, a C-minus or D on contributions of big-picture, cross-cutting ideas to state policy and practice.

The idea of the EQB was to be a place for the study of options and excellence, a place where the big environmental issues would be discussed, ideas would be generated, solutions would be suggested. I don’t think that’s happened very much.

We’ve for sure had a huge opening up of the process, of public participation, and that’s a big benefit.

Think of all the big and good environmental things we’ve done — the Legacy fund, or the hierarchy for solid waste, the incineration of waste, no-fault landfills. Almost all of these things didn’t come through the EQB, or at least get talked about very much. And we haven’t tapped the EQB very much on land use, which was one of the things we really thought was going to come out of the 70s.

For both Herman and Dayton, a key issue was the board’s decision to require full environmental impact statements for only a handful of projects each year — a fact that may surprise talk-radio listeners who’ve been told an EIS is required when a small-business owner wants to repaint the stripes in the parking lot.

Not so. Even for very large projects, “review” consists of filling out an environmental assessment worksheet, or EAW. Originally a simple checklist, they said, the point of the EAW was to establish only whether there would be any impacts to review. If not, that was the end of the process; if so, further analysis could be  required.

But with the EQB’s acquiescence, they said, project developers and their consultants are using the EAW to show both potential impacts and mitigation measures, resulting in zero actual impacts and no further analysis.

So, you may ask, what’s the big deal here, if both an EAW and an EIS come to the same result?

Ah, but they don’t, Dayton explained, with an eloquence that I feel merits extended (if lightly compressed) quotation:

The heart of Minnesota environmental law is a substantive standard — pretty unique, it’s not in federal law or in other states — which says that if you’ve got a project with significant potential to harm the environment, and there are feasible and prudent alternatives, you have to pick the less damaging alternative.  And economic considerations alone are not a defense.

I want to put that standard on a blimp and fly it over the Capitol Mall.

The EIS process requires analysis of alternatives, but in most cases the EQB requires only an EAW.  So the environmental consultants are telling clients to use the worksheet to show all the steps they’ll undertake to avoid environmental harm, as a way of avoiding a full EIS. And they end up doing a document that’s as fulsome as an EIS, except for one thing:

It doesn’t contain an analysis of alternatives.  That’s not required in an EAW. This undercuts the law. The agencies let the environmental consultants get away with this, and the court of appeals slavishly defers to the agencies.

On-the-ground example

Still not persuaded? Dayton’s personal example:

It’s always fun for me to fly into the airport, over Pilot Knob, because I can look out the left side and see Black Hawk Lake, along with 35E running into St. Paul from down around Buck Hill, and when it gets to Black Hawk Lake, it curves around it.

That was a case I handled. We had to take the DNR to court — and it went to the state Supreme Court — to get them to take this feasible and prudent alternative rather than throw a bridge across Black Hawk Lake. Alternatives are key.

In Dayton’s reading of the law, the EQB chair has independent authority to revise the EAW form, and that led him to a modest proposal: add a section asking about the presence of feasible and reasonable alternatives, and let that drive the decision whether to require a full EIS comparison. “I don’t think it would require a rulemaking,” he said. “I don’t think it even requires hearings.”

His other key point: EIS review includes climate impacts, including potentially cumulative impacts from, say, a group of buildings whose designs and materials determine their contributions to global warming. The current EAW process, however, considers climate impacts for only for a few specific emission sources. And climate is kind of important now.

“The next eight years, I’m told, are gonna determine the future of the planet,” he said in conclusion. “You have a role to play. I wish you success.”

* * *

After a healthy round of applause died down, there was a call for board members to offer any questions, comments or reflections on what they had just heard from the speakers. To the sorrow of this listener,  there was silence.