Weakening Environmental Review – A Bad Idea Gone Worse
Yesterday, Governor Mark Dayton signed a one-sided piece of legislation to weaken environmental oversight developed by industry lobbyists without even a pretense of debate on its key provisions.
Major policy changes in this bill, such as allowing project proponents to prepare their own analysis of whether their projects will pollute the environment, were inserted in the bill on the floor of the legislature. What this means is that the only people who could talk were legislators — no members of the public allowed. No father could talk about his children becoming ill as a result of fumes from the hog lagoon next door. No lawyer could explain how the environmental impact statement prepared by a State agency supported a good decision to minimize harm from a project (I’ve got a list of these I could share).
Other changes in the environmental assessment roll back bill (HF1/SF42) now signed into law include: changing the law so that a State agency (the IRRRB) can spend public money on a project before an investigation is done to see if it would cause irreparable harm to the environment, allowing projects to begin construction before they receive permits and reducing citizen access to the courts to challenge a poor quality job conducting environmental review.
Let’s start calling policies by their proper names. The GOP’s recent gift to polluters is not a “permit-streamlining” bill, but a weakening of public and citizen oversight to protect Minnesota’s clean air, clean water and other natural resources from the short-sighted demands of corporate self-interest. This new law further increases the leverage of the powerful and reduces the likelihood of negotiation and influence to reach outcomes that are beneficial for both private investors and the community as a whole.
Weakening environmental oversight is not a “good idea gone bad,” but a “bad idea gone worse.”
Rather than genuflect to the inevitability of power, we need leaders in government and the non-profit sector to have the courage to look out for the long-term public interest and stand their ground.
PolyMet Mine – Spotlight Shed on Risks
For the past six weeks, WaterLegacy has been investigating the financial capacity of the PolyMet corporation, the company proposing Minnesota’s first sulfide mine, and track record of its significant financial backer, Glencore International AG (Glencore).
We learned that PolyMet openly admits it has neither assets nor insurance to cover potential liabilities for environmental pollution associated with open pit sulfide mining. Glencore, the privately held Swiss company backing the PolyMet project, has $5.3 billion in profits and a turnover of $116.5 billion.
However, Glencore has been rated by European NGOs as the “Worst Corporation of the Year.” Globally. Quite a distinction. Its global track record includes pollution at mine operations for copper in Africa and coal in South America, union busting, job shedding when prices fluctuate and stripping a French subsidiary of funds, leaving a $400 unfunded pollution clean-up liability at a copper processing facility. See WaterLegacy’s PolyMet & Glencore Report for more detailed information. WaterLegacyPolyMetGlencoreReport(3-11)
In light of WaterLegacy’s Report, the Star Tribune asked Minnesota State agencies how they intended to make sure that there was adequate financial assurance for the proposed PolyMet sulfide mine. Interestingly, although the U. S. EPA compliance division told PolyMet and the agencies last February that detailed financial investigation should be part of PolyMet’s environmental review, state agencies are now suggesting that they might put off financial assurance analysis until the permitting process, long after alternatives for mining and water quality treatment are determined. See Star Tribune, Copper Mine Risks Highlighted (March 1, 2011) .StarTribune, “Copper Mine’s Risks Spotlighted.”
Even if the thought of destroying a thousand acres of wetlands for an open pit mine doesn’t bother you and you are not dismayed by the vision of 375,000,000 tons of waste rock (see MDNR Slides of Tailings and Waste Rock) making sure that the company profiting from the mine pays to prevent violation of water quality standards seems pretty fundamental. If PolyMet and its backers don’t provide financial assurance to clean up their pollution, you can be sure that all of us will end up picking up the tab.
Same Old Revolving Door for Industry Lobbying
Surprise. Brad Moore, the former commissioner of the Minnesota Pollution Control Agency (MPCA) has been officially hired as a lobbyist for the PolyMet Mining Company. Between his stint at the MPCA and his current sinecure, Moore worked in a governmental affairs job for Barr Engineering, the consulting firm pushing for approval of the PolyMet copper sulfide mine. [Note: Barr Engineering prepared the environmental impact statement for the PolyMet project given a failing grade by the U.S. Environmental Protection Agency earlier this year. EPAGivesPolyMetEISFailingGrade(Commentary)] In each of his three recent jobs Moore has served to promote the interests of the PolyMet Mining Company.
The most obvious concern is that this “revolving door” may encourage government officials to support the interests of their future employers, rather than the interests of the public and future generations. More profoundly, the question must be raised whether Moore’s various pro-industry jobs are merely lateral moves within a unitary enterprise.
Benito Mussolini, the Italian fascist leader of the mid-20th century explained, “Fascism should more appropriately be called Corporatism because it is a merger of state and corporate power.”
Democracy is the brave thought that government represents people who may not have access to power (or the offer of remunerative jobs). Environmentalism is the even braver thought that regulators are hired not to issue permits sanctioning the destruction of natural resources, but to counterbalance corporate power and protect clean water, clean air and the legacy of generations.
Hope is the blade of grass between cinder blocks. We must hope that this Administration will be different.
Legal Fight for Wild Rice Water Quality Standard
Just before the December Holidays (nice timing) the Minnesota Chamber of Commerce filed a lawsuit in Ramsey County attempting to block the Minnesota Pollution Control Agency’s enforcement of Minnesota’s water quality standard limiting sulfate discharge in wild rice waters (“Wild Rice Rule” for short). Mining industries, the most prodigious dischargers of sulfates, objected to the costs of controlling their discharge of sulfuric acid compounds into Minnesota freshwater in violation of water quality rules.
Basically, the polluters want the court system to let them write the rules under which they will be regulated.
On January 6, we filed a motion to intervene in the case on behalf of WaterLegacy, representing WaterLegacy’s members who harvest wild rice, hunt game that depend on stands of natural wild rice for food and habitat, and fish in waters in which natural wild rice contributes to water quality and reduces algae blooms. WaterLegacy also filed a motion to dismiss the Chamber’s lawsuit for failure to state a claim on which relief can be granted.
The legal argument behind a motion to dismiss is pretty technical, but in plain language we have argued that the lawsuit filed by the polluting industries is frivolous.
A quick summary: 1) the claim that the Wild Rice Rule should not apply to natural stands of wild rice contradicts the plain language of the Rule and history that the Chamber has admitted; 2) even if everything the Chamber claimed were true, the claims would not show that the rule has been applied in a discriminatory manner or in conflict with any laws; 3) even if a discharger of pollutants has a quarrel with the application of a rule to their project, it does not have a right to go to court before the agency has finished its administrative work; 4) the Chamber’s request for rulemaking regarding the language of the Wild Rice Rule is unnecessary duplication, since this standard is already in rulemaking under a “Triennial Review” process required by federal law. We also wonder why the Chamber would ask a judge to order rulemaking without telling the judge that a rulemaking process is already underway. Does this case pass the “smell test”?
The mining companies can readily afford litigation, whether or not it has merit. We hope that the courts will uphold Minnesota water quality standards and require polluters to follow the rules and respect the administrative process.
One of Minnesota Lawyer’s “Attorneys of the Year for 2010″
Paula Maccabee thanks Minnesota Lawyer for the honor of being selected as one of the ”Attorneys of the Year for 2010.” The nomination was based on public interest work in environmental law and energy law.
What’s Up with the Wild Rice Standard?
Don’t take your eyes off the deck of cards while they’re shuffling. Protection of natural wild rice from sulfate pollution faces ongoing uncertainty and the Minnesota Pollution Control Agency needs more backbone.
A broad coalition of tribal and non-Native ricers and the best applicable science all suggest that the State should not weaken current rules limiting sulfates in wild rice waters to 10 milligrams per liter (mg/L). See PreserveWildRiceStandard, the attached brief prepared on behalf of WaterLegacy. Although pressure from mining company polluters is mounting, at least for now the Minnesota Pollution Control Agency has not folded. The Agency’s statement as of last week, “While revision of the 10 mg/L sulfate criterion continues to be evaluated for the 2012 Triennial Review, it seems unlikely that sufficient data will be available to propose a revision to the numeric standard.” Could be stronger Agency folks — stick to your guns.
As usual, the devil is in the details. The Pollution Control Agency will be trying to define what should and should not be considered “water used for the production of wild rice.” If only waters with “significant” remaining natural wild rice stands are considered protected waters, it is a free pass for polluters. Don’t let polluters game the system by killing off the wild rice with sulfates and then gaining the right to pollute some more.
The Pollution Control Agency is also presuming — without writing a new rule — that the current rule providing that sulfates must be limited to “periods when the rice may be susceptible to damage by high sulfate levels” only applies to spring and summer months. The best scientific evidence suggests that sulfates are converted to hydrogen sulfide and affect both seeds and root symptoms of natural wild rice year-round. Adopting a policy favorable to polluters instead of an analysis of evidence specific to wild rice stands is considered under Minnesota law to be an “unpromulgated interpretive rule.” Statutes and case law say unpromulgated rules are not kosher.
Finally, the Agency is planning to release a draft protocol for how to study wild rice, and then start the process of consulting with tribal wild rice and plant specialists. Just once, can’t our government do this in the right order — consult with the tribal agencies first and then make the proposal?
The Minnesota Pollution Control Agency’s most recent (December 8, 2010) positions on wild rice aren’t up on their website yet, but they are attached here. MPCA Wild Rice Positions (December 2010) The point person for your questions or comments is Gerald Blaha <Gerald.Blaha@state.mn.us>
Telling the U.S. Forest Service Don’t Trade our Land Away
Yesterday was the official deadline (although comments after November 29 will still be considered) for comments on the scope of analysis that the U.S. Forest Service must complete before trading away 6,650 acres of Superior National Forest land in order to allow the PolyMet open pit sulfide mine to proceed.
Why might trading away our forests and wetlands for the PolyMet mine be a bad idea? [Hint: what creates 375,000,000 tons of waste rock piles, acid mine drainage and is certain to go bankrupt when it is time to clean up its pollution?]
Acid Mine Drainage Near BWCAW
• The land exchange would give PolyMet a huge private windfall, while creating a huge loss for the public. Across the country, this type of “deal” has been a national scandal. Public land is systematically undervalued so that international mining companies can get sweetheart deals.
• The land exchange and the resulting open pit sulfide mine would violate the Forest Plan for the Superior National Forest and result in irreparable environmental harm — destroying wetlands of national importance, generating huge piles of waste rock and tailings, seeping acid mine drainage, increasing mercury in fish, destroying habitat for endangered species, including the Canada lynx and gray wolf and violating water quality standards for thousands of years if not forever.
• The land exchange would harm Tribal rights and interests, one more example of how the United States government fails to meet obligations in the Treaties signed with Tribes.
• The proposed land exchange is inconsistent with federal statutes, federal rules, the Forest Service Handbooks, Uniform Standards of Appraisal, the Forest Plan and federal case law.
Comments made on behalf of WaterLegacy on the analysis that must be done before public lands can be exchanged to make way for the PolyMet open pit sulfide mine are attached here.WaterLegacyComment. If an analysis of the land exchange and the law were done with any rigor, the proposed PolyMet Land Exchange must be rejected.
It is not too late to tell the U.S. Forest Service to save our land from sulfide mining plunder.
Victory – Manganese Health Standard Preserved!
Just last week, we called for action to preserve Minnesota’s standard preventing excessive amounts of manganese in groundwater. The Minnesota Department of Health had announced that they were planning to repeal a rule limiting manganese in drinking water. Excessive manganese affects the nervous system, impairing intellectual development in children and resulting in Parkinson’s like symptoms in adults.
Nearly 30 citizens took action, sending comments to the Minnesota Department of Health opposing the repeal. Citizen comments included an article published on line by Environmental Health Perspectives in September 2010, demonstrating significant intellectual impairment in school-aged children exposed to elevated levels of manganese in drinking water. Manganese Harm to School-Aged Children, September 2010.
As a result of citizen opposition and the new research brought to their attention by the public, the Minnesota Health Department staff members reconsidered their decision to repeal Minnesota’s rule limiting manganese in groundwater to 100 ug/L.
As reported by Minnesota Public Radio, MPR Manganese News, this health-based standard is safe, for now. However, the Health Department may study the manganese rule again next year, so we need to keep paying attention to public health and the integrity of public process.
Will Minnesota Lose Protection from Manganese Pollution in Drinking Water?
This may be hard to understand, but just as the pressure builds to permit sulfide mining and processing, the Minnesota Health Department is proposing to repeal the Health Risk Limits that protect Minnesota drinking water from overly high levels of manganese contamination.
A little background here. Health Risk Limits are the Rules required under Minnesota law to protect drinking water. If a source of industrial pollution will exceed those Limits, the proper practice is to require pollution controls or deny the permit.
Enter sulfide mining and processing, perhaps the greatest threat to surface and groundwater that Minnesota has ever faced. Sulfide mining causes acid mine drainage that affects aquatic systems and increases mercury in fish. Sulfide mines and tailings basins also leach metals into water that are dangerous to human health as well as to the ecosystem. Among the metals leached by sulfide mining and processing is manganese.
Over-exposure to manganese is known to affect the nervous system, causing Parkinson’s like symptoms and impairing learning in children. Existing mine tailings and the proposed PolyMet open pit sulfide mine leach and seep manganese far above Minnesota’s current Health Risk Limits. In this context, it is striking that the Minnesota Department of Health is attempting to repeal the manganese Health Risk Limit. There would then be no Minnesota Rule preventing high levels of manganese in drinking water.
There has been no public attention to the Health Department’s proposal to repeal the manganese standard. The official last day of comments is November 17, 2010 and the address to whom to send comments is Nitika.Moibi@state.mn.us.
Here are the key points from a public health perspective:
• The Health Department should not repeal the manganese Health Risk Limit;
• Manganese is dangerous to human health, causing impacts to the nervous system;
• Repealing the Health Risk Limit will eliminate an important Rule protecting Minnesota citizens from environmental pollution;
• There is a real and present danger of manganese toxicity in drinking water resulting from sulfide mining and processing;
• The Health Department should be protecting Minnesotans from industrial pollution, not eliminating standards that would require pollution to be controlled.
Detailed Comments submitted on behalf of WaterLegacy explain the need to preserve Minnesota’s Health Risk Limit for manganese. This Limit is important to protect human health from industrial pollution related to sulfide mining and processing. It is also important to preserve the integrity of Minnesota’s regulatory process.
Will polluters comply with standards or will legal limits simply be repealed when they seem to get in the way?
More Good News Fighting Power Lines on the Midtown Greenway
The Midtown Greenway Coalition and many community groups and citizens opposing Xcel Energy’s proposal to put high voltage power lines on the Midtown Greenway have just achieved another incremental victory. Check out the Coalition web site for more details. (http://www.midtowngreenway.org/XcelEnergyGridExpansion.html)
Last month, the Administrative Law Judge (“ALJ”) supported the Midtown Greenway Coalition and the neighborhoods recommending that the Hiawatha Project power lines be routed underground on 28th Street and that community groups be consulted on reducing the harm — noise, aesthetics, impacts on homes and the Greenway — of substations for the Project. The 100 single-spaced pages of the Administrative Law Judge Report – Hiawatha Project is attached here. The Public Utilities Commission makes a final decision, usually relying heavily on the ALJ’s Report.
Xcel Energy filed a series of exceptions to the ALJ Report, challenging findings about health risks, adverse impacts to property values and impacts to the Midtown Greenway bike ridership if overhead high voltage lines were built. Xcel also tried to exclude the community from playing a role in the design of substations along the Midtown Greenway.
On behalf of the Midtown Greenway Coalition, we filed a Request for Variance seeking permission to comment on the exceptions (the rules don’t usually allow this step) and Reply Comments challenging Xcel’s views. Midtown Greenway Coalition Reply to Xcel Exceptions. The Public Utilities Commission received letters of support for our Variance from the City of Minneapolis, Hennepin County, many neighborhood groups and many individual citizens (68 pages of public comments!)
Today, Xcel told the Commission they did not object to considering the Midtown Greenway Coalition’s Reply Comments. Xcel also emphasized that “it did not take exception to the ALJ’s recommendation that the Public Utilities Commission (“Commission”) approve Route D (underground along 28th Street) for the proposed 115 kV transmission lines.” This is progress.
The Commission will decide whether the power lines are needed before considering the Hiawatha Project route and substations, so no further action is likely to take place for at least a year on these issues.
But today is one more step bringing us closer to keeping overhead high voltage lines off the Greenway and keeping the Midtown Greenway Coalition and the Phillips, Seward and Longfellow neighborhoods involved in reducing impacts from Xcel’s power line infrastructure.