Why 2022 could be a critical year for the controversial PolyMet mining project in northern Minnesota

Every year brings new developments for PolyMet Mining’s controversial copper and nickel mine proposal in northeast Minnesota, but it can sometimes feels like nothing ever changes.

The project first entered the environmental review and permitting process in 2005, when George W. Bush was president and Tim Pawlenty was governor of Minnesota. Now, 17 years later, aspects of the mine’s plan and its permits are still being investigated or challenged in court to see if PolyMet would risk polluting Minnesota water, air and habitat.

Still, a few key milestones are approaching in 2022 that could resolve some crucial questions about the mine’s permits, even if other aspects of the project could still be challenged. This year “really could be kind of a watershed year for the project,” said Bruce Richardson, a PolyMet spokesman.

Where things stand

If built, PolyMet’s open-pit mine near Hoyt Lakes and Babbit would be the first of its kind in Minnesota. While Minnesota has a long history of mining iron ore and taconite, there aren’t mines to extract copper, nickel, cobalt, palladium, platinum and gold as PolyMet would.

Such mining carries risks that taconite mining does not, primarily from toxic byproducts of the mining process that can damage water and will require treatment and site maintenance — potentially for decades or even hundreds of years. PolyMet’s proposed mine sits in the St. Louis River watershed, which flows into Lake Superior, and its potential dangers have sparked opposition from environmental nonprofits as well as the Fond du Lac Band of Lake Superior Chippewa.

Meanwhile, PolyMet and supporters say their mining techniques, water treatment and waste reclamation plans will meet environmental standards and even improve water quality in the area.

The company, which is owned primarily by the Swiss mining giant Glencore, promises the roughly $1 billion project would bring 360 direct jobs to the region and more than 600 indirect ones after construction. Supporters also argue the metals could be used to help power green technology like electric car batteries.

The four lawsuits

There are four major unresolved challenges tied to the PolyMet mine:

• One of those challenges is related to the project’s Permit to Mine, a permit approved by the Minnesota Department of Natural Resources that was reversed by the Minnesota Supreme Court in April. Opponents of PolyMet had sued over several aspects of the mine, including the type of tailings dam that will hold waste from the project. The Minnesota Supreme Court sided with PolyMet and the DNR on many issues, but agreed with environmental groups on other contested points. 

First, the court said the DNR had to set a fixed time limit for PolyMet’s permit. PolyMet’s permit to mine says planned mining and reclamation activities will be done in roughly 2072, though long-term maintenance and “active water treatment” will continue indefinitely until state rules on mine closure are met and the need for maintenance has ended. The DNR argued an indefinite permit would allow the length to be based on the environmental performance of the mine and prevent the company from waiting until its permit ended and walking away from responsibility. PolyMet models show “post-closure maintenance” is likely needed for at least 200 years, the Supreme Court opinion says.

The DNR is still deciding how best to write an end date for the permit and plans to get public input on whatever they decide at some point in the future, according to an agency spokeswoman.

The court also said the DNR must hold what’s known as a “contested case hearing” — a trial-like proceeding in front of an administrative law judge meant to sort through controversial issues — on whether the company’s plan to use bentonite, a clay sealant, in its tailings pond as a key pollution prevention strategy would be effective. There is also no date set for the start of the contested case hearing, as the law judge is still determining the scope, process and timing of the proceeding.

• PolyMet opponents are also suing state regulators over a water-pollution permit granted by the Minnesota Pollution Control Agency. Environmental groups and the Fond du Lac Band have made a range of claims in the lawsuits, including that the limits on pollution like mercury and heavy metals set by the MPCA can’t be properly enforced. A decision in the Minnesota Court of Appeals is expected by January 25 at the latest.

• In June, the federal Environmental Protection Agency told the state of Wisconsin and the Fond du Lac Band that discharges from PolyMet may affect their water quality. The action was required by the Clean Water Act, and as a result, both jurisdictions could object to a federal “Section 404” permit previously granted by the U.S. Army Corps of Engineers and request a hearing on the issue. In response, the Fond du Lac Band — which had already sued the EPA in federal court over the issue — has asked for a hearing while Wisconsin has not. The 404 permit is tied to construction-related damage to wetlands including the discharge of dredged and fill material into water. No date is set for the hearing yet, though Richardson, the PolyMet spokesman, said he expects it to be earlier rather than later this year.

• Lastly, the appeals court in July asked the MPCA to review parts of an air emissions permit. Environmental groups accused PolyMet of applying for a “sham” permit for emissions from a smaller mine when they plan to expand later on. A larger mine would likely need a tougher air permit. In December, the MPCA affirmed the permits, however, saying in an agency order that there wasn’t enough evidence to prove PolyMet was asking for the smaller permit “in bad faith.”

“The existence of potential expansion scenarios and disagreements around Project economics do not demonstrate that PolyMet knowingly submitted false and misleading information,” the written order says.

Agency spokesman Darin Broton said if PolyMet were to expand, which is something they have mentioned as a possibility, they would need to either amend their permit or seek a new one. JT Haines, northeastern Minnesota program director for the Minnesota Center for Environmental Advocacy, said his nonprofit advocacy group will “very likely” appeal the new MPCA findings.

The big picture

Richardson, the PolyMet spokesman, said in some ways PolyMet has made progress toward its goal of construction. There were originally more than 20 lawsuits challenging permits or the project, though many of those were consolidated into 11 total cases. Of those, six have reached what Richardson said was a final conclusion in the company’s favor.

Richardson said PolyMet hopes the rest of the cases could be resolved in 2022. Some legal challenges could even go on while the company moves ahead with construction or mining, Richardson said. “We’re down towards the end,” he said.

Still, the remaining cases are tied to crucial permits, and the company has repeatedly had permits get reversed or put on hold in the courts amid challenges from opponents of the project. “Fundamentally in 2022 we are effectively where we were in 2021,” said Haines, from MCEA. “The company does not have legal permission to move forward and all the major permits are still stayed, remanded or otherwise suspended and still at issue in the courts. … How those cases play out in 2022 I don’t think anyone can claim to know for sure.” 

As environmental groups challenge PolyMet in court and in state permitting, they’re also calling on Gov. Tim Walz and his agencies to drop the project entirely. Paula Maccabee, attorney for the environmental group WaterLegacy, which was a plaintiff in the Permit to Mine and the MPCA water permit case, said the project never should have been permitted and should never be built. The more she learns about PolyMet’s tailings dam construction — and the more she learns about the plan to use bentonite to prevent mining pollution — the more concerned she has become. “My question is really for the state agencies and for the governor: How bad does this project have to be for you to finally pull the plug?” Maccabee said.

The MCEA has started a new advocacy campaign called Move on from PolyMet. Haines said a “new reality took shape in 2021” where permits were back at state agencies for the first time since Walz was elected and those agencies now have a “new opportunity to take a new approach on the PolyMet issue and address some of these flaws.” 

“We’d really like to see the governor acknowledge the problems that aren’t going away, say, you know, enough is enough and help set a new direction that would actually be safe for our communities,” Haines said.

The project retains broad support from elected Republicans and some elected DFLers, as well as business groups and trade unions. There is also a contingent of Democratic lawmakers, however, who oppose the project.

If PolyMet ever does secure all permits it needs, the company still needs to finance construction of the mine. Richardson said while the deep-pocketed Glencore could be a “potential party to financing” and are very supportive of the project, it’s “not a given.”

Richardson said the PolyMet mine would come as Walz and President Joe Biden have “lofty goals for electric vehicles and for renewables, wind turbines, wind farms, solar farms and those kinds of things.” Any metals from PolyMet would be commodities sold on a world market, Richardson said, meaning they couldn’t promise use for domestic green technology at this point.

Still, Richardson said “these metals that we’re producing are really crucial to not only modern society but crucial to these goals for clean energy and climate change and our own security.”