When former Department of Natural Resources Commissioner Tom Landwehr granted a mining permit to PolyMet, the controversial open-pit copper-nickel mine planned in northeastern Minnesota, he sometimes fended off critics by saying he was merely following state law.
Minnesota has tough regulations, he said, but a permit doesn’t require zero pollution or environmental impact. “I think the incumbent thing for us is to make sure that … we hold the company to the standards that are in state law,” Landwehr told reporters in November 2018, when he was asked if he was concerned about environmental damage from the PolyMet project. “That’s the best we can do. We just are regulators to state standards. Again, that doesn’t mean there won’t be any impact; it just means those impacts have to be within standards and that they’re mitigated.”
That notion has led some environmentalists and DFLers who see the copper-nickel mine as a threat to the St. Louis River basin and Lake Superior to call for a stricter regulatory gantlet for any future projects.
Yet those cries have been rebuffed at the state Capitol, and not just in the Senate, where support for mining runs deep in the Republican majority. Two bills on the topic have also stalled in the DFL-led House, which has been divided over PolyMet and another potential copper-nickel mine despite being more aligned with environmental activists than their GOP counterparts.
“There is bipartisan interest in certainly addressing these issues — or at least examining them,” said Don Arnosti, the executive director of the Izaak Walton League’s Minnesota chapter, which has fought to stop PolyMet. “But the powers that be in both parties, in both [legislative] bodies, do not want to talk about it.”
The DNR’s dual role
By law, Minnesota’s government must “provide for the diversification of the state’s mineral economy through long-term support of mineral exploration, evaluation, environmental research, development, production, and commercialization.” That duty falls largely on the DNR.
Arnosti is a fervent supporter of House File 1202, a bill that would remove the responsibility for promoting mining in Minnesota from the DNR and give the job instead to the Department of Employment and Economic Development (DEED).
Arnosti said the dual role of advancing and regulating mining creates a conflict of interest that has influenced permitting decisions. Even if different employees are doing the work, creating something of a firewall, he said, the commissioner is ultimately responsible for both tasks.
“It’s like the Titanic,” Arnosti said. “They have these walls to prevent flooding from compartment to compartment, but they didn’t go all the way up to the top, and the water just flowed over the top and sank the ship.”
The legislation to move the promotion of mining to DEED is being sponsored in the House by Rep. Jennifer Schultz, a DFLer from Duluth. Schultz said she doesn’t think there have been any ethical missteps at the DNR, but said there could be a perceived conflict of interest that is best removed. “This was probably more to try to prevent anything from happening in the future and just to build increased trust,” she said.
Schultz’s bill is co-sponsored by Rep. John Persell, who chairs the House Environment and Natural Resources Policy Committee, but Persell did not give it a hearing this session.
Arnosti said he has pushed the legislation for a few years, but it did not win the support of Republicans or from Landwehr in the past.
In a written statement sent to MinnPost, Jess Richards, a DNR assistant commissioner who oversees the Lands and Minerals Division, said his agency believes the bill “would create a situation where it would be difficult to ensure broad natural resource topics are fully integrated with mineral promotion efforts.”
Richards also noted the DNR has a long history of both managing and promoting other natural resources and said the mineral development and permitting teams work independently. “We fulfill a dual mission in many aspects of our work, such as forest management, recreation, game and fish regulation, and minerals management,” he said. “Regardless of the topic, we always conduct state business with the highest level of professionalism and integrity.”
Proposal would create ‘unprecedented’ requirement
Another bill aimed at changing how DNR evaluates mining, House File 2212, would prevent the agency from granting a permit to a copper-nickel mine unless the department can show that at least one other sulfide mine in the U.S. or Canada — which includes copper, nickel and other precious metals — has not polluted nearby groundwater or surface water.
The bill is sponsored by Rep. Jim Davnie, DFL-Minneapolis, and is cosponsored by several other Democrats, including some involved in environmental issues. Copper-nickel mining is considered more environmentally risky than traditional iron ore mining because the extraction process can produce heavy metals that leach into water.
Toward the end of Landwehr’s tenure at DNR, the agency secured a financial assurance package from PolyMet if clean up is needed. DNR estimated the package will be worth $588 million when mining starts and can rise to more than $1 billion as mining ramps up.
If built as planned at a former LTV Steel taconite operation near Hoyt Lakes, PolyMet would be the first mine of its kind in the state. The company has all the permits necessary for construction of the $1 billion mine plan and said in a March 21 news release it “is refining the technical details of the project as planning for final engineering and construction are underway.”
Davnie’s measure got an even colder response from the DNR than the proposal to move mining promotion to DEED. While spokesman Chris Niskanen said DNR technically has no stance on the bill, Richards noted it would set an “unprecedented requirement for mining projects unlike anything that is applied to other industries.”
“This would be based on the performance of older projects outside of Minnesota’s regulatory authority,” Richards said. “Notably, the bill would be in conflict with multiple existing state statutes related to mining.”
The politics of mining
Discussion of any bills to make mining regulations stricter is, for now, somewhat academic. New hurdles for copper-nickel mining face almost certain opposition in the Republican-led Senate. The party is largely united in support of PolyMet and has cheered the economic boost it could bring. PolyMet says it expects to employ 360 people directly, and that another 1,000 new spinoff jobs could spring from the project. Some DFLers, particularly those from northern Minnesota, have supported PolyMet, too.
Sen. Bill Ingebrigtsen, a Republican from Alexandria who chairs the Senate’s Environment and Natural Resources Finance Committee, said he believes the amount of permitting and regulations PolyMet has cleared has been “astronomical” and said he’d “like to see this mining going on.”
“If anybody has done a good job it has been the DNR and the [Minnesota Pollution Control Agency] to make darn sure that if anything happens there is financial assurance available to clean up,” he said.
Still, the House has not been shy about passing legislation that may not survive the Senate. Wednesday evening, it approved a plan to move the state to carbon-free energy by 2050.
It’s clear, however, that mining issues split DFLers in ways other environmental issues don’t. While Schultz’s bill found some prominent support, the representative from Duluth said some of her fellow Democrats are “concerned about anything that has to do with changing the regulations of mining.”
And while she said party leaders are open to debating anything their lawmakers bring forward, Schultz said other concerns rated as higher priorities — such as writing budget related bills to pass them before legislative deadlines. Schultz said the bill could still come up next year.
Simonson, the Duluth senator, said legislators also take cues from DNR since they’re experts on the permitting process. If they were to ask for changes to the permitting process, that might build political will.
Landwehr told MinnPost last month that while state pollution and permitting standards are strong, they aren’t tough enough for Twin Metals, which is located in the BWCA’s watershed. He described the permitting as “very prescriptive” and said the Boundary Waters campaign might propose changes to the process next year after building “a grassroots support base.”
Richards, the current DNR official, said “Minnesota’s environmental review and permitting laws provide for a comprehensive and rigorous review of any proposed mining project” that is “supported by an extraordinary level of scientific analysis of each specific proposal.”
“While the regulatory processes are designed as a series of defined steps, that does not mean that the outcome of any specific project review is a foregone conclusion,” Richards said.
Niskanen, the DNR spokesman, said they are willing to discuss changes in mining laws. At the same time, Richards deferred to lawmakers on the idea of setting new mining policy, saying the agencies shouldn’t — or can’t — make major changes to the process on their own. “That type of policy development rests with the legislature and must account for a wide range of social, economic, and environmental factors,” he said.
Correction: This post has been updated to clarify that the DNR says they have taken no official stance on HF 2212.