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The MPCA delayed gathering public comments on a ‘Clean Cars’ rule because of COVID-19. Why not Line 3?

The Minnesota Pollution Control Agency’s decision speaks to the difficulty of grappling with complex regulation amid an unprecedented situation, but it also raises a larger question: How do government agencies balance legal deadlines and meaningful public input when the state is on lockdown?

Final Line 3 Replacement Project route
Final Line 3 Replacement Project route
Enbridge

Faced with a pandemic disrupting public life, the Minnesota Pollution Control Agency recently delayed a set of tough new vehicle emission rules, and is offering flexibility on meeting regulations for hundreds of businesses affected by COVID-19. But the MPCA is moving ahead, largely as planned, with environmental review of another project: the controversial Line 3 oil pipeline.

The agency just wrapped up three “telephone town halls” in early April to gather public comments on Enbridge’s proposed pipeline, after extending the window for outside input by one week.

The agency’s decision has frustrated some environmental advocacy groups, who say regulators are setting a double standard for how they operate during the public health crisis, one that favors the fossil fuel industry. MPCA leaders say their hands are tied on Line 3 because inaction would give the permit decision over to President Donald Trump’s administration.

The episode speaks to officials and advocacy groups grappling with complex environmental regulation during the COVID-19 outbreak, but it also raises a larger question: How do government agencies balance legal deadlines and meaningful public input when the state is on lockdown?

A Clean Cars delay

Of all the issues under consideration by the MPCA, Line 3 and the vehicle pollution rules are perhaps the most contentious. Gov. Tim Walz had proposed the so-called Clean Cars rule as one of his top environmental priorities last year, a move meant to combat the enormous emissions from Minnesota’s transportation sector.

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The rules would match California’s tailpipe emission standards and require auto manufacturers to deliver more electric cars for sale to Minnesota. The regulations would also diverge from President Trump’s plan to roll back federal emission standards. The proposal was met with stiff opposition from Republicans in the Legislature — and skepticism from some rural DFLers — for potentially increasing the up-front costs of buying a car, but the MPCA was set to gather official public comments on the idea this spring at public hearings.

State Rep. Dan Fabian
On April 3, however, the agency told legislative leaders it couldn’t get proper public input during a pandemic. “The COVID-19 public health crisis has required the MPCA to reassess its processes and schedules to ensure the public has adequate time to review and give meaningful input before decisions are made,” said Greta Gauthier, an assistant commissioner at the MPCA, in a statement at the time.

It was the right move, according to the GOP. “Minnesotans are already facing significant financial challenges, and we should put a pause on any new government regulations until the crisis is behind us and our economy has recovered,” said Roseau Rep. Dan Fabian, who is the top Republican on the House Environment and Natural Resources Finance Division.

The MPCA says it’s still aiming to adopt its emission rules by the end of 2020 as originally planned, though it has not set a time for public comment.

Line 3 permits still under consideration

Even as it was pushing back its schedule on the Clean Cars rule, however, the MPCA announced it would plow ahead with public comment on Line 3, which was already underway, but with a week-long extension. The MPCA also scrapped three in-person meetings in northern Minnesota in favor of telephone events where people can call in and leave verbal comments.

If built, Line 3 would transport 760,000 barrels of crude oil a day from Alberta to Superior, Wisconsin, skirting Itasca State Park and cutting through the Mississippi River’s headwaters region on a path through northern Minnesota. The $2.6 billion pipeline is intended to replace an existing one, built in the 1960s, that Enbridge says is a spill risk and operating at half capacity. 

The project and its route have repeatedly been approved by state regulators on the Public Utilities Commission amid fierce debate over balancing climate change, rural jobs and the safety of the existing infrastructure. Several Democratic presidential candidates opposed the pipeline, while Republicans, trades unions and many rural and centrist DFLers in the state have supported it.

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One of Line 3’s remaining hurdles is the MPCA. Enbridge needs four permits from the agency, including ones meant to protect waterways and wetlands from damage during construction — and spills once the pipeline is operating. The MPCA has already issued draft permits for the pipeline, though before a final decision is reached the regulators must undergo a public comment period to receive and respond to feedback.

That comment period began on March 2 and was originally open until April 3. The MPCA extended it one week on March 24, the day before Walz announced his stay-home order.

A double standard … or an effort to safeguard water?

Andy Pearson, Midwest Tar Sands coordinator for the climate advocacy group MN350, called the week-long extension for the Line 3 comment period a “wildly inconsistent” double standard. 

Honor the Earth
Winona LaDuke
Winona LaDuke, executive director of another anti-pipeline nonprofit, Honor the Earth, said public comment needed to be extended “much longer than just a week,” and said it was a health risk to send thousands of workers into northern Minnesota shortly after the COVID-19 pandemic. 

The effect of the outbreak needs to be examined, too, LaDuke said, since the Canadian oil industry is crashing, forcing a cut to output.

MPCA leaders say the comparison between Clean Cars and Line 3 doesn’t quite work, and further delay of the comment period would risk turning over permitting to the federal government. “It’s not apples to apples at the end of the day,” said agency spokesman Darin Broton.

Broton said the agency has deadlines set by the U.S. Army Corps of Engineers for making a decision on a key water pollution permit for Line 3, the first being August 15. The MPCA can seek an extension of the deadline, though only to November. The main way to get that extension would be if the permit, known as a 401 Certification, required a “contested case hearing,” a trial-like proceeding before an administrative law judge that will offer an opinion on disputed facts. Broton said the agency can’t opt for a contested case hearing if there are no official public comments, however.

If the MPCA misses that November deadline, Broton said the agency risks losing the permitting to the feds, who would apply less stringent national standards that have been relaxed under Trump, instead of Minnesota’s tougher ones. Trump has already taken action to speed the approval of pipeline projects.

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While the 401 Certification deadline is months away, Broton said the MPCA needs adequate time to review and respond to public comments and determine if a contested case hearing is necessary. “There’s no flexibility” on the November deadline, Broton said. “It would take an act of Congress to change the Clean Water Act to allow this to happen.”

Broton said the main reason the MPCA delayed the Clean Cars regulations is because it needed “clarity” from the state’s Office of Administrative Hearings on how to hold hearings with administrative law judges during a pandemic. The agency needs to have those proceedings as part of its rule-making process. Broton also said the MPCA needs to learn more about the Trump administration’s recent actions to roll back national vehicle emission standards.

Moreover, Line 3 and Clean Cars aren’t the only issues before the MPCA amid the pandemic. The agency has relaxed pollution regulations for hundreds of businesses affected by COVID-19, and it’s working on an assessment of greenhouse gas emissions at a planned expansion of the massive Daley Farms dairy operation in Winona County.

The Department of Natural Resources also rejected a 30-day extension on a public comment period for a project that would convert 300 acres of managed timberland to irrigated agriculture in the Pineland Sands region of central Minnesota — an area that is sensitive to water pollution from farms. (The DNR said the public had plenty of lead time to comment and lots of information on the project, though environmental groups were not happy.)

MPCA commissioner Laura Bishop opened the first Line 3 town hall by telling callers she values public input, and hopes to receive plenty of it. More than 1,600 people dialed into the town halls and more than 400 left comments. Bishop also said the agency “cannot put the process on hold.”

“If we want to be protective of Minnesota’s waters, we have to continue the process,” she said.