‘Secrecy is unacceptable.’ Minnesota Supreme Court reverses NewRange mining permit after regulators shield federal criticisms

The Minnesota Supreme Court’s decision on Wednesday to reverse a water permit for a proposed copper-nickel mine near Hoyt Lakes was the latest in a string of setbacks for NewRange Copper Nickel, likely delaying further a long-running project that already faces hurdles.

But the unanimous ruling was notable for another reason: its rebuke of state regulators at the Minnesota Pollution Control Agency, who courts say hid federal criticism of the strength of its permit for the NewRange mine and did not fully grapple with those concerns.

The MPCA — which failed to keep certain records, deleted emails and shielded information from the public in part to avoid bad press that could have followed a negative assessment by the federal Environmental Protection Agency — broke from normal practice enough to undermine the Supreme Court’s faith in the permit.

“We conclude there are danger signals suggesting that the MPCA did not take a hard look at whether the permit complies with the Clean Water Act (CWA) and that the MPCA did not genuinely engage in reasoned decision-making in dealing with concerns that were raised by the EPA,” the 68-page ruling says. 

With Wednesday’s ruling, the Supreme Court sent the crucial permit back to the MPCA. The agency will have to give the EPA a chance to weigh in, this time in a more formal and public manner. Only then could the court decide if the final product complies with the law, the ruling says.

The decision to issue the wastewater permit was made in December of 2018, shortly before Gov. Tim Walz took office. At the time, Mark Dayton was governor, John Linc Stine was commissioner of the MPCA and Donald Trump was president. 

But the Walz administration, which has defended the permit and the agency in court, will now have to redo some of the permitting process for NewRange — a joint venture between PolyMet Mining and Teck.

In a prepared statement, MPCA spokeswoman Andrea Cournoyer said the agency recognizes the Supreme Court order and is seeking clarity from the feds and from NewRange on addressing “critical water quality issues.”

Environmental nonprofits that challenged the permit in court praised the ruling. Paula Maccabee, attorney for the nonprofit WaterLegacy, led the way in revealing the EPA criticism and more through a combination of records requests, litigation and leaked information. She said in a statement that the ruling represented a “good day for clean water in Minnesota and a good day for the restoration of regulatory integrity in Minnesota.”

Transparency advocates who aren’t typically involved in the heated debate over copper mining also weighed in. Those groups had argued in court that the MPCA had concealed information the public deserved to know.

“I think this was a resounding victory for open government in Minnesota,” said Mahesha Subbaraman, an attorney for Public Record Media and the Minnesota Coalition on Government Information.

A long saga over wastewater permit

While the story of the water permit goes back to 2018, the story of the mine stretches back much farther: NewRange first entered environmental review as PolyMet almost 20 years ago in 2004.

The open-pit operation would be the first copper-nickel mine in Minnesota, a state long known for extracting taconite. The project could bring more than 300 direct jobs and other economic benefits. But copper-nickel mining has also drawn controversy, in large part because, unlike taconite, it can result in acidic runoff that leaches heavy metals into water.

By 2019, the state and federal government had issued all permits for PolyMet to begin construction, saying its water treatment system and other mining technology would be enough to meet environmental standards.

But since then, courts and regulators have reversed some major permits. In June, for instance, the U.S. Army Corps of Engineers revoked a different crucial water permit, throwing the project into limbo.

The permit before the Minnesota Supreme Court in this case governs the release of wastewater, and it’s known as a National Pollutant Discharge Elimination System permit (NPDES). The mine’s wastewater system would discharge up to 4 million gallons daily into wetlands that flow into the watershed of the St. Louis River and Lake Superior.

Minnesota writes the permit, but the feds scrutinize that work to make sure the project would meet standards under the Clean Water Act. And the EPA has the power to veto any decision.

Back in 2018, the EPA did have concerns. The federal agency said, for instance, that limits on pollutants like mercury and heavy metals written by the MCPA may not be enough to safeguard water, and they may not be enforceable. It suggested a solution that the MPCA ultimately didn’t adopt.

Those complaints are usually lodged in writing during a public comment period. But that didn’t happen in this case.

Instead, the MPCA made an unprecedented request for the feds to delay sharing those concerns. State officials say their ask was benign: Staff was busy responding to a deluge of other public comments. Plus, the agency figured it would change the draft permit anyway in response to those comments, so it might avoid overlapping concerns by saving the EPA for later.

MPCA officials also said they did not have the power to actually block the EPA from weighing in publicly if the feds wanted to do so. But the EPA agreed and ultimately it withheld written comments altogether. The EPA also did not veto the final product.

However, the EPA did read complaints to the MPCA over the phone. And the Supreme Court ruled that not enough information from those calls made it into an administrative record that details how the MCPA made its decision, effectively shielding the criticism from view.

When information about the episode — and evidence of deleted emails — finally came to light, WaterLegacy and others argued in court that the MCPA had suppressed strong criticism of the state permit to keep the opinion of federal scientists and regulators out of the public eye.

One MPCA leader even told an EPA official that the agency wanted to keep federal criticism under wraps in part because the concerns would “create a good deal of press.”

Ultimately, a Ramsey County District Court judge decided that the MPCA had wrongly deleted some public records and had, in fact, tried to shield the EPA views to avoid bad press. But that judge also said the agency largely did not break permitting rules or laws. He concluded the MPCA did not systematically try to hide evidence of their actions.

Supreme Court Ruling

After appeals in the permitting case, the legal fight made its way to the state Supreme Court. On Wednesday, the high court found that MPCA’s actions were troubling enough to call the permit into question. The ruling says it could not determine if the NPDES permit would comply with pollution law because the state hadn’t fully considered the EPA’s criticisms.

The court said the decision to issue a permit was “arbitrary and capricious,” writing that the agency failed to create records from the EPA and failed to preserve records that were created. The public’s knowledge of how and why a government makes decisions lie at the heart of a democratic government, the ruling says.

“Although the district court concluded that there was “no overarching effort by the MPCA to keep evidence out of the administrative record,” we have an extensive administrative record that does not explain, and indeed barely recognizes, significant EPA concerns and disagreements with the MPCA involving an important, complex permitting decision,” the ruling says.

A concurring opinion written by Justice Anne McKeig and signed by another four of the seven justices of the state Supreme Court went even further. It said the EPA had found “specific inadequacies” that, if left in the final permit, “failed to protect” more stringent water standards written by the Fond du Lac Band of Lake Superior Chippewa.

The MPCA and the EPA made the Fond du Lac Band, which also sued in the case, an “afterthought,” the concurrence says.

“The MPCA and the EPA reached an arrangement that ultimately kept any record of these inadequacies secret,” McKeig wrote. “The MPCA and the EPA sought to avoid public scrutiny and to hide the risk of illegal water pollution from the public eye. This secrecy is unacceptable.”

Now, the MPCA has to give the EPA an opportunity to provide written comments on the final permit. And Minnesota regulators have to respond to any of those comments. They also said the MPCA should amend the permit if necessary to ensure compliance with the Clean Water Act and state and tribal water quality standards. 

NewRange said in a statement that the decision was mostly concerned with the actions of government agencies and their regulatory process. But the statement says “NewRange is confident that the additional proceedings will confirm the project protects water quality for all, and welcomes working with stakeholders on the permit.”

Evan Nelson, an attorney for Maslon LLP who represented the Friends of the Boundary Waters Wilderness and other environmental groups in the case, told reporters on Wednesday that the decision was about “the importance of process and the importance of transparency and not necessarily on the legitimacy of the permit at the end of the day.”