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Critical of Minnesota Pollution Control Agency, some DFLers want to revive citizens board idea

The proposed eight-member “community board” would vote alongside the MPCA commissioner on permits for things like new dairy farms and mining projects.

Dairy cow
MPCA government relations director Tom Johnson said the agency “does not oppose” bills advancing in the House and Senate to create an eight-member “community board” that would vote alongside the MPCA commissioner on permits for things like new dairy farms.
REUTERS/Nathan Frandino

After 48 years, the Citizens’ Board that once oversaw permits for the Minnesota Pollution Control Agency died in a relative flash. It was a legislative deal in 2015 between DFL and Republican lawmakers that spelled the end, a move that came after the board voted to require a large dairy farm go through more extensive environmental review.

“Dark of night, there had been no hearings,” said Jim Riddle, who owns a Winona-area fruit farm and was a board member at the time. “Just out of the blue as a retaliation.”

Now, eight years after the Citizens’ Board was eliminated, some DFLers hope their majorities in the House and Senate will be enough to revive it. Progressive groups that are sometimes critical of the MPCA, like the Land Stewardship Project, which opposed the dairy farm plan, are behind the effort.

But is Gov. Tim Walz and his MPCA on board with the idea? MPCA government relations director Tom Johnson said during a Senate hearing Thursday the agency “does not oppose” bills advancing in the House and Senate to create an eight-member “community board” that would vote alongside the MPCA commissioner on permits for things like new dairy farms and mining projects. 

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He did not exactly issue a ringing endorsement of the bills, either: “We would respectfully ask the committee and the (bill) author to let the agency have the conversations we need to have both internally and externally before this bill moves further,” Johnson said.

Tom Johnson
Tom Johnson
Republicans who celebrated the board’s demise at the time worry a new community board would be used by environmental activists as a way to unfairly stop projects. Agriculture trade groups also have raised concerns, arguing the bill would create unnecessary bureaucracy in a permitting process they say is already rigorous, frustratingly slow and expensive.

That contrasts with supporters, who say the move would right a legislative wrong — and also make environmental review more transparent, democratic and less beholden to business interests.

“I’ve heard from many Minnesotans who feel like the MPCA treats industry as its clients rather than centering people and our natural environment,” said Rep. Kristi Pursell, a Northfield Democrat sponsoring the bill, during a House hearing on Tuesday.

Still, there is at least some consternation among some fellow DFLers in the Legislature, and Walz would have to weigh in on a measure that would make the MPCA share power.

History of the Citizens’ Board

The Citizens’ Board was created with the MPCA when the agency was established in 1967.

Riddle, who served on the Citizens’ Board from 2012 until its demise in 2015, told the Senate’s State and Local Government and Veterans Committee on Thursday that board members “served as a check on the agency charge with protecting Minnesota’s environment and human health.”

He said board meetings were well attended and broadcast. Decisions were “made in public, in broad daylight,” Riddle said, and he believes regular people, not just businesses proposing a project, more easily had the ear of regulators. And Riddle said the board members could ask tough questions of both industry and MPCA staff that made recommendations on whether to greenlight projects.

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Riddle said the Citizens’ Board could insulate the commissioner against political pressure because a board would share the burden of making decisions. And he contends the board wasn’t a major obstacle for industry. Riddle told MinnPost the board “rarely” made a decision that ran counter to what the MPCA wanted. But he said the citizen members improved and strengthened agency decisions.

In 2014, the board did split from the MPCA on one project. The members voted to require Riverview LLP undergo more environmental review on a 8,500-head proposed dairy farm in Stevens County. The MPCA staff had conducted a more standard review and recommended against the more thorough environmental impact statement.

Riddle remembered many unanswered questions about the project, like concerns with flooding, water and manure use. But the decision frustrated agricultural groups at the time. An EIS can take time and money to complete, delaying the project. Riverview dropped its proposal and opted to expand where it already had permits, according to reporting at the time.

In the following 2015 legislative session, the House was led by Republicans and the Senate by DFLers. Rep. Kurt Daudt, R-Crown, was the House Speaker.

In an interview Monday, Daudt said he was familiar with the controversial Riverview case and believes environmentalists generally used the board to try to stop projects that met criteria for a permit under state law as determined by expert MPCA staff. But more than anything, Daudt said he felt the “duplicative” board made no sense. “It always kind of baffled me,” he said, that a board of political appointees would oversee a regulatory process.

Daudt said his counterpart in the Senate, then-Majority Leader Tom Bakk of Cook, was no fan of MPCA regulation of mining in northeastern Minnesota. And so after a backroom deal negotiated between Bakk and Daudt shortly before the end of the legislative session, the provision to eliminate the Citizens’ Board was inserted into a larger environment omnibus bill and passed by lawmakers.

That bill was vetoed, and the Citizens’ Board remained a political flash point. But ultimately, the measure passed weeks later in a special session in a budget bill Dayton signed begrudgingly to avoid a partial government shutdown.

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“I wouldn’t say that it was snuck in at the middle of the night,” Daudt said. “It was a contentious issue.”

The new proposed community board 

The bill being considered this session would reinstate the board, though in a somewhat different fashion. Like before, it would include eight members. Like the MPCA commissioner, Katrina Kessler, the members would be appointed by the governor and be subject to confirmation by the Minnesota Senate. The members would also get per diem but not a regular salary.

Katrina Kessler
Katrina Kessler
New in the current bill, however, is a provision that says the board must reflect the race, gender and geographic diversity of the state. At least one board member would need to be an enrolled tribal member under the proposal, and three must live in what’s defined as an “environmental justice community” and identify as a person of color or be low-income. One member must be a member of a labor union. And finally, at least one member would be a livestock or crop farmer, though one with either fewer than 200 head of livestock or fewer than 500 acres of cropland.

Kessler would serve as the ninth member and chair the board. But the board as a whole would vote on lots of environmental and permitting questions before the agency.

Amanda Koehler, policy manager for the Land Stewardship Project, testified in the Senate that the board would have the same powers under the bill as it did when eliminated.

Supporters argue that besides representing good and transparent governance, the board would help the MPCA be more accountable to public input. Some hope a board will lead the agency to side with environmental activists and nonprofits who have lost recent decisions such as granting a water permit to the Enbridge Line 3 oil pipeline.

“Those of us most impacted by government decisions deserve to have a meaningful say in those decisions,” said Marie Kills Warrior, a member of the Oglala Lakota Nation and an energy research and project developer for the Winona LaDuke-founded 8th Fire Solar, during the Senate hearing.

Republicans, ag groups object

GOP lawmakers, by contrast, painted the community board as a misguided effort that could derail projects that otherwise meet government standards and inflame a conflict between what they see as metro-area environmentalists and rural industry. 

Republicans have already been frustrated by the downfall of several industrial projects in recent years — from a shrimp farm in Luverne to a wood factory in Cohasset — that they blame at least in part on slow government permitting. The idea of an unelected, governor-appointed board was also an issue for GOP lawmakers.

“Unfortunately we have a very very cumbersome process because we are not friendly to agriculture, we are not friendly to business in this state,” said Sen. Steve Drazkowski, R-Mazeppa, in the Senate committee hearing. “I’m afraid this bill … is going to make it even less friendly.”

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Daudt wondered if the effort was more about reliving old vendettas than improving regulation. “Is this something we should all just let go of? My guess is that’s the case, that people should just kind of step back from the emotion of what happened back in 2015,” he said.

It’s not only Republicans who have raised concerns. Rep. Dave Lislegard, DFL-Aurora, echoed some GOP worries about an uncertain business climate. It’s not clear how deep the DFL division over the issue might be. The party has narrow majorities in the House and Senate.

The MPCA does have public notice and comment periods for a majority of its permits and all environmental review, said spokeswoman Andrea Cournoyer. The agency also often holds public meetings, town halls or listening sessions on major issues. For example, the agency said it got more than 10,000 comments for the Line 3 oil pipeline water permit. The MPCA convened three “telephone town halls,” during that pandemic-era comment period, and also separately granted what’s known as a contested-case hearing before an administrative law judge to examine disputed issues and make recommendations for the agency.

Ag and business groups that are often critical of the MPCA or environmental laws were in the perhaps unusual position of defending the agency and its process.

Tony Kwilas, director of environmental policy for the Minnesota Chamber of Commerce, said the Citizens’ Board was established at the dawn of a new age in environmental regulation. The federal Environmental Protection Agency was created three years later, just before the landmark Clean Water Act in 1972. A host of other environmental laws followed. Now, he said the MPCA has a robust process for scrutinizing projects and taking public input.

MPCA board as a political bargaining chip

For the MPCA’s part, Johnson told lawmakers the agency shares the values of accountability and transparency in permitting, and has made efforts to better engage with residents and consider impacts and reduce pollution in environmental justice areas. Cournoyer said the agency recently launched a new online tool for gathering comments and has asked for money from lawmakers to boost public engagement.

If legislators choose to reinstate the board, Johnson said it should be negotiated thoroughly in a way that creates consensus, so that the board isn’t used as a political bargaining chip whenever control of the Legislature changes.

Johnson asked lawmakers to take things slowly. He said the MPCA and other interest groups hadn’t been involved in discussions over the bill until recently. 

“There’s always room for more transparency,” Johnson said in the House hearing Tuesday. “Again, we would like to have that conversation in a thorough stakeholder process where we decide what is the right path forward.”