Appeals Brief Filed Today to Preserve Wild Rice Sulfate Standard

Here is the Appeals Brief filed today on behalf of WaterLegacy defending the wild rice sulfate standard. WaterLegacyAppealsBrief(WildRiceStandard)(8-6-12) A quick summary: the wild rice standard is constitutional, enforcement of the standard is well within the scope of authority of the Minnesota Pollution Control Agency (MPCA) and, in fact, is among the duties of the MPCA under state and federal clean water laws. The wild rice standard was obviously intended to protect natural stands of wild rice as well as cultivated paddy rice, and the Complaint filed by the Minnesota Chamber of Commerce, representing the mining industry, should be dismissed in its entirety and on the merits.


A Minnesota state district court already held that the mining industry’s claims are without legal merit, and a long line of state and federal precedent supports the district court’s decision. However, the legal system allows the mining industry to appeal the trial court’s decision — even if their claims are baseless.


My perspective is that this litigation highlights the hypocrisy of the mining companies. Their public relations message is that the mines will “comply” with water quality standards. But, at every level – legislative, administrative and judicial – the mining companies expend extraordinary effort to eliminate and weaken water quality standards and to ensure that they will be interpreted to put no limits on mining company pollution.


Basically, when mining companies tell Minnesotans that they will comply with standards, they mean that they will play by the rules if and only if they get to rewrite them.


Now, more than ever, regulators are under continuous and abundantly-funded pressure to let the polluters have their way. Staff time is consumed with defending pollution control standards rather than implementing and enforcing them. Sometimes the U.S. EPA is our only backstop.


What can be done? Money matters and political leadership matters. The best thing we could do is enact a constitutional amendment to turn back the Supreme Court’s decision allowing unlimited corporate donations in politics. In the meantime, support President Obama (and his EPA) and elect state officials who care about the environmental and care about real people, not corporations pretending to be people.


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GREAT NEWS – Wild Rice Sulfate Standard Upheld in Court!

We learned this week that my client, WaterLegacy, has won an important case against the Minnesota Chamber of Commerce. Judge Margaret Marrinan has upheld the wild rice sulfate standard challenged in the Chamber lawsuit and granted our motion for summary judgment — dismissal of all claims without going to trial! 

In December 2010, the Minnesota Chamber of Commerce, on behalf of its mining industry members, filed a lawsuit in district court to prevent the Minnesota Pollution Control Agency (MPCA) from applying Minnesota’s wild rice sulfate standard to protect natural stands of wild rice from sulfate pollution, including discharge from mine waste rock piles and tailings basins.

WaterLegacy intervened in this lawsuit to defend the wild rice standard. We believed that enforcing this standard is necessary to protect wild rice and aquatic ecosystems. We wanted to make sure that litigation would not undermine Clean Water Act protection of Minnesota streams, lakes and rivers from sulfate pollution, particularly sulfide mining pollution.

Both WaterLegacy and the MPCA filed motions for summary judgment in January 2012 and argued them on March 1, 2012. Here are some highlights from Judge Marrinan’s detailed, 19-page decision filed yesterday

“The Wild Rice Rule does not violate due process. It is not unconstitutionally vague, nor is the application of the rule arbitrary and capricious.”

The Judge noted, “In approving the wild rice standard, the EPA concluded that the standard is consistent with the federal Clean Water Act. Plaintiff’s [Minnesota Chamber of Commerce’s] assertion that the wild rice sulfate standard is in any way inconsistent with the Clean Water Act lacks merit.”

Judge Marrinan ruled that the Minnesota Chamber of Commerce Complaint should be dismissed in its entirety with prejudice and on the merits. [This means the case was thrown out on the substance, not a technicality, and they can't make the same claims again.]

This is a huge victory for protecting Minnesota’a water resources and the natural wild rice that is so important to tribes, to aquatic ecosystems and to the Minnesota hotdish! See coverage in the StarTribune and from AssociatedPress(CBS) on CBS.

We only hope that some of the mining industry energy that has gone into fighting the standard can now be invested in compliance with the wild rice sulfate rule.

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Public Interest Environmental Law – Playing Fields

I’m looking forward to Minnesota’s Environmental Institute this Thursday, April 19. Unsurprisingly, there are various presentations by the usual suspects – environmental practitioners for business and corporate interests. 

But, the Environmental Institute also makes space to hear from public interest environmental lawyers, including a presentation I’ll make with Steve Morse of the Minnesota Environmental Partnership and Scott Strand, from Minnesota Center for Environmental Advocacy.

A couple tidbits. Did you know that non-governmental public interest lawyers make up less than 3 percent of the “environmental” lawyer bar? A 2009 law review analysis by Professor Bonine includes the following statistics:

Business Environmental Lawyers                          20,000-30,000
Government Environmental Lawyers                   2,000
Citizen’s Environmental Lawyers                              750
Non-profit Salaried Litigators                                 250
Non-profit Salaried Non-Litigators                         250
Private Non-Salaried Public Interest Lawyers       250

Did you know that the 2012 National Committee for Responsive Philanthropy found that the 2% of environmental groups that have budgets over $5 million received more than 50% of grants?  Not much support for local citizens’ groups and grass roots.

Check out my presentation materials for the Environmental Institute,  ”Private Practice of Environmental Law – Leveling the Playing Field.”

One cautious thought about using the playing field metaphor, from Louis Kelso and Bill Moyers (1990):

“The Roman arena was technically a level playing field. But on one side were the lions with all the weapons, and on the other the Christians with all the blood. That’s not a level playing field. That’s a slaughter. And so is putting people into the economy without equipping them with capital, while equipping a tiny handful of people with hundreds and thousands of times more than they can use.” 




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NEW Book, Turn Here Sweet Corn, Celebrates Organic Farm Victory


Paula (L) and Atina Diffley (R) Celebrate Release of Turn Here Sweet Corn

Turn Here Sweet Corn, a poignant and powerful memoir by organic farmer, Atina Diffley, is a compelling lesson in organic farming, a powerful family drama, a love story and a legal thriller.

Atina and I first met in the spring of 2006, when Minnesota Pipeline Company, a subsidiary of mammoth Koch Industries, proposed to locate a crude oil pipeline right through the middle of the Gardens of Eagan organic farm. Atina and her husband, Martin Diffley, were committed both to preventing the destruction of their 100-acre organic vegetable farm and to ensuring that other organic farms obtain protection from pipelines and power lines proposed across their land.

I represented Atina and Martin and we gathered scientific and legal evidence, allies and citizens to oppose the pipeline location and to argue for an Agricultural Impact Mitigation Plan specific to organic farming. We obtained township and county resolutions, collaborated with organic food coops, organic consumers and the State Department of Agriculture, filed expert testimony and engaged more than 4,500 citizens who asked that the Gardens of Eagan farm and other organic farms be protected from pipelines.  A recent article in Minnesota Lawyer LegalVictoryOverKoch describes the David and Goliath victory. A more detailed analysis of the legal case is contained in the  Drake Journal of Agricultural Law  (DrakeAgriculturalLawJournal).

Turn Here Sweet Corn is a surprising page-turner, passionate, funny, wise and ultimately hopeful – both about our relationship with the earth and about our relationships with each other. You can buy a copy on line from the University of Minnesota Press at U of M Press – Turn Here Sweet Corn

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Keeping and Breaking Promises for Clean Energy

These are the best of times. These are the worst of times. Take your pick.

On January 18, 2012, the Minnesota Public Utilities Commission unanimously  voted to approve power purchase agreements for 30 megawatts of locally-owned wind on the south side of Minnesota’s Buffalo Ridge. Almost nine years ago, in approving an ultra high voltage power line through western Minnesota, the Commission had ordered Xcel Energy to purchase 60 megawatts of locally owned wind power.

The idea was simple. If local rural communities have transmission lines and towers cutting through their farms and homes, they should gain some benefit from potential ownership of clean energy. It may have taken a few years and some interesting negotiations, but in the final analysis my client, Minwind Energy, the Department of Commerce, Xcel Energy and the Commission all agreed. Community Wind South was economical, reasonable and met the requirements of the 2003 Order: Promise kept.

Just a couple weeks later, the Republican Senate took the appalling action of rejecting Public Utilities Commission Chair Ellen Anderson. Apparently, it was irrelevant that she is highly-qualified for the job, knows the applicable law and had run proceedings with sensitivity to citizens and ratepayers as well as conscientious review of the record. It was irrelevant that in more than 220 votes on the Commission, Chair Anderson was in the minority only 6 times. It was even irrelevant that the renewable energy, conservation and energy efficiency legislation that Senator Anderson had authored in the Legislature had enjoyed bi-partisan support and had been signed by a Republican Governor.

Partisanship instead of policy. “Gotcha” instead of governance. Special interests instead of public interest. Bottom line, whether you care about clean energy or clean politics: Promise broken.



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Hopeful Sign – MPCA Commissioner Says “Facts” Will Determine Policy

As a frequent skeptic about the capture of regulatory agencies by the regulated parties, I was delighted to learn that Minnesota Pollution Control Agency (MPCA) Commissioner Paul Aasen has been telling agency leadership that facts matter.

In an internal letter in November summarizing progress on strategic goals in 2011, Commissioner Aasen said the following:

“When we can dive in and do the technical work, good things happen. . . So the challenge remains the same, collect the facts, draw the conclusions and then use those facts to inform the public debate. We will have to continue our fact finding and try to add to our ability to inform policy and decisions.”

Commissioner Aasen also cited with approval news coverage of climate change, celebrating the “fact come-back after the past years of often fact-free debate” and that, with the reporting on climate change, “The ‘facts’ won another victory last week.”

Commissioner Aasen closed his letter to MPCA colleagues saying, “Thanks for your hard work gathering the facts. It shows in our strategic review and it will always win out in the end.”

From my perspective as a public interest environmental lawyer, it has often seemed that political pressure and avoidance of conflict with powerful industries has informed Minnesota’s regulatory policy and decisions more than facts. Technical staff have been bypassed or their findings buried in order to meet the demands of regulated parties, which the Agency has mistakenly served as their “customers.” The result has been extensive paperwork justifying continued pollution and avoidance of key issues that degrade natural resources and impair public health.

I am hopeful that Commissioner Aasen’s elevation of the importance of facts signals a change in “business as usual.” If MPCA leaders encourage staff to develop facts about pollution and rigorously apply legal standards, there is a fighting chance that both the facts and the public interest are likely to “win out” in the end.

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Midtown Greenway Protected – Historic Ruling to Bury Power Lines

Last week, the Minnesota Public Utilities Commission (MPUC) made a landmark decision to require Xcel Energy to bury new power lines.

In 2009, Xcel Energy proposed to put two “Hiawatha Project” 115 kV high voltage transmission lines on 75- foot poles over the Midtown Greenway in the most densely populated area of the state, the Phillips Neighborhood of South Minneapolis. Sure, the Phillips Neighborhood is more densely populated than downtown Minneapolis and no overhead high voltage lines have been placed in areas of similar density since the 1950′s. Yes, the Midtown Greenway is a treasured biking resource in which local governments have invested $20 million and a redevelopment engine for tens of millions of dollars of private housing and business development. Oh, and did we forget that the Greenway trench, itself, is a nationally listed historic place, which makes it a natural resource that power lines should avoid?

Don’t blame Xcel. This was a case of first impression. The Minnesota Public Utilities Commission had never previously ruled that a power line had to be built underground under state statutes and rules written to protect the environment, public health, and human settlement. The path of least resistance is always to spend less and put high voltage lines overhead.

I represented the Midtown Greenway Coalition, an organization determined to protect both the Greenway and the surrounding neighborhoods. The Coalition intervened and we coached and supported intervention in the MPUC process by five other neighborhood groups. The City of Minneapolis and Hennepin County also intervened to support placing the power lines underground. The Coalition and neighborhood groups participated actively in environmental review and in several weeks of contested case evidentiary hearings. We filed testimony and exhibits and provided information to many citizens in the community who came to public hearings and made comments.

At the end of the Hiawatha Project contested case, Administrative Law Judge Beverly Jones Heydinger made 545 findings of fact, supporting underground Route D on 28th street, concluding:

“Route D will minimize the effects on natural resources, including historic resources, and on persons living and working within the Project Area, and will better serve the public health, safety, and welfare. Route D will not hinder future transit development and will follow an existing transportation right-of-way. Although the cost of Route D is greater than the other alternatives, the factors favoring an underground transmission line in an urban area as densely populated as the Project Area justify the added expense to offset the human and environmental impact of the overhead alternatives.”

The final environmental impact statement (EIS) and Department of Commerce staff concurred with the ALJ recommendatiion:

“Route Alternative D has the least impact on human habitation, aesthetics, cultural values and resources, public infrastructure, transportation, land-based economies, and maximizes the use of existing public right-of-way.”

On January 12, 2012, the Minnesota Public Utilities Commission made the historic decision to require that high voltage power lines be placed underground. This is a victory not only for the Midtown Greenway Coalition and Minneapolis neighborhoods, but for the application of statutes and rules to ensure that energy infrastructure does not impose excessive burdens on communities and valued resources.

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State Farm Service Agency Rules in Favor of Organic Farmer

This week, the Minnesota State Farm Service Agency (FSA) ruled in favor of my client, Vance Norgaard, an organic soybean farmer whom a county had proposed to penalize for having “uncontrolled” weeds on his organic farm in 2010. County officials had suggested that penalties were appropriate under the Direct and Counter-cyclical Program (DCP) because Mr. Norgaard had not sprayed his organic crops to eliminate weeds.

The State FSA cited the evidence that there was no impact on neighbors from weeds and that Mr. Norgaard had never received complaints from county weed inspectors after nearly four decades as a certified organic farmer. They also understood that the practices of an organic farm were appropriate and sufficient to control weeds and that, since spraying pesticides is prohibited, the only option to totally eliminate weeds on an organic farm would be to destroy a value-added crop. Here are some key quotes from the FSA decision:

“The weeds were controlled according to the standards in place by Organic Industry. Documents were provided that the organic certifier and two organic farming experts reviewed the record and determined that the weeds were controlled.”

“The yield for your farm was above average for soybeans compared to other organic farms in the state and documentation was provided that showed this. If the weeds were an issue; this yield should have been below the organic industry average for soybeans.”

This recent State FSA decision is a big deal both for Mr. Norgaard and for other organic farmers who wish to qualify for and retain DCP crop support payments. The best part was listening to the State FSA Committee — older farmers with nice suits and rough hands — talk with knowledge and caring about growing good crops using organic practices.

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WaterLegacy Ranked #1 Promising Start-Up Protecting Minnesota’s Environment

WaterLegacy, my client and a source of passion and inspiration, has just been chosen  Number One in the category of promising Minnesota environmental non-profit start-ups for our work protecting water quality from the risks of sulfide mining.

Philanthropedia, a national group working in partnership with local foundations to help donors give more strategically,  reviews and evaluates non-profits. They chose WaterLegacy #1 based on expert recommendations of promising start-up nonprofits working to protect Minnesota’s environment. Here’s the link to the Philanthropedia web page recognizing WaterLegacy: Philanthropedia WaterLegacy Page.

Who, might you ask is WaterLegacy?

WaterLegacy is a grassroots non-profit formed in 2009 to protect Minnesota’s water resources and the communities — human and ecological — that rely on them from the threats posed by sulfide mining. From a couple folks across a kitchen table, WaterLegacy has grown to over 2,000 members, including many who are skilled and active volunteers. Please check out the WaterLegacy web site to learn more about our work. During the past few months, our efforts have been dedicated to preserving and enforcing water quality standards that prevent the destruction of natural wild rice and the contamination of fish with toxic mercury.

A friend once told me, when it is hard to believe that the things we hold dear (fresh water, healthy people, a sustainable natural environment) will be protected in years to come, each of us must just “do hope”. The belief will follow.

Thanks to the Philanthropedia folks for affirming that WaterLegacy is having an impact in preserving Minnesota’s environment.

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One Step Forward – Sulfate Standard Applied to Keetac Mine Expansion

Okay, it took 18 years. From 1973, when Minnesota’s sulfate standard of 10 milligrams per liter was adopted in Rules to protect natural stands of wild rice all the way until October 2011, no water pollution permit for a mine had ever required the mine to comply with this sulfate standard.

Last month, for the first time in Minnesota history, as a result of combined efforts of WaterLegacy, other conservation groups, hundreds of citizen comments and the U.S. EPA, the Minnesota Pollution Control Agency (MPCA) required U.S. Steel to comply with the wild rice sulfate standard as part of its permit to expand the Keetac mine. See the Star Tribune report on Keetac water pollution permit.

  • Sulfate pollution WILL BE regulated under the wild rice sulfate standard of 10 mg/L, and U.S. Steel’s Keetac mine is no exception.
  • U.S. Steel will be required to return every year to the MPCA Board and publicly report its progress on reducing sulfate pollution to justify the continuation of the permit.

Yes, U.S. Steel still has too long a time for compliance. And yes, there should be tougher limits set for other pollutants in the Keetac wastewater. But, the U.S. EPA helped make the permit enforceable and the MPCA Citizens’ Board required U.S. Steel to come back once a year for an annual check-up on whether they are working to control their pollution, rather than stonewalling. One step forward for the simple proposition that the laws on the books actually apply to mining corporations.

Why, you might ask, has it taken so long to achieve this basic level of enforcement?

Mining corporations are powerful. People who gather rice are not. Fish and waterfowl don’t vote or provide contributions to those who share their views. Water does not protect itself.

So, that is our job.

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