Episode 3: PolyMet Back in Court: The fight for Minnesota’s clean water

Proposed copper-sulfide mining in northern Minnesota threatens some of the cleanest water in the country, including the Boundary Waters and Lake Superior.

Over the past year, Friends of the Boundary Waters and our partners have won important legal challenges against PolyMet’s proposed toxic copper sulfide mine, which threatens to pollute Lake Superior. In October 2021, PolyMet was back in court, before the Minnesota Court of Appeals. Friends’ Board Member Evan Nelson, an attorney at Maslon LLP, will provide a special look at the important wastewater permit before the court and where this case will go from here.

Evan breaks down the legal arguments from Friends of the Boundary Waters and its partners Minnesota Center for Environmental Advocacy, WaterLegacy, and the Fond du Lac Band of Lake Superior Chippewa who are also involved in this case.

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Attorney Evan Nelson breaks down the legal arguments from Friends of the Boundary Waters and its partners Minnesota Center for Environmental Advocacy, WaterLegacy, and the Fond du Lac Band of Lake Superior Chippewa who are also involved in this case.

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FULL TRANSCRIPT

Evan Nelson
Environmental organizations have rarely get victory when they’re trying to use the courts to challenge these permitting decisions. The fact that we’re getting these victories that not only because of you, but also because this mine is just not a good idea. It’s not well designed.

Chris Knopf
Hello, welcome to the Friends of the Boundary Waters Podcast. I’m Chris Knopf, the friends executive director. And it has been another important week in our battle to protect our clean water from toxic sulfide mining over the past year, with our partners, we have one important legal victories against Polymet proposed toxic sulfide mine that would poison Lake Superior. Yesterday on October 27. We are back in court at the Minnesota Court of Appeals to stop Polymet wastewater pollution permit.

On today’s podcast, we’ll hear from our board member, Evan Nelson, an attorney with the Maslin law firm in Minneapolis. Evan analyzes the oral argument, and tells us where this important case goes from here. Thank you so much for joining us.

Evan Nelson
Thank you, Chris. And good afternoon to everyone who’s joining us. Thank you so much for joining us. Thank you for your support. And by support, I mean your financial support, I mean, your support and showing up to this event and other events. And honestly, just your spiritual and emotional support. These are difficult legal issues and legal fights that we have. And you guys are really the wind in our sails. And the headway that we’re making, and we’re making significant headway in these challenges is because of you. So thank you for that. I want to start the presentation today. Just to kind of orient ourselves where we are, as Chris mentioned, we are facing two minds that are one threat to the Boundary Waters wilderness. And we today we are talking about the Polymet. Mind. There’s another mind at the Twin Metals mind. And you can see on the map on this slide that the Twin Metals minus further north deployment minus further south.

The orange area on this slide is the area that directly at risk of pollution caused by these mines.

As you can see, it would cut a tremendous swath through the Boundary Waters wilderness.

And the destruction would be insurmountable and tremendous tragedy to not only our state, but as you can see Canada as it goes for the North. And in very significantly to the fund black band whose reservation is downstream of the Polymet line. That’s gonna be an important issue later, as we talk aboutmy finger Next slide, please. Thank you.

So a mine in Minnesota, requires the state of Minnesota permission. And that’s why we talk about permits, the state has to say, yes, you can mind. And there are various permits that every mind has to obtain the first of which and the predicate of which would be the permit to mind the permit to put a shovel in the ground.

That permit was successfully challenged and reversed at the Supreme Court level recently. And that permit no longer exists. Polymet does not have a permit to mine. Right now. They have an application and that application is still pending, but we’re still fighting that the friends are still part of that fight. I’m not going to talk specifically about that. But there’s one thing I want to highlight about that decision.

The Polymet Mining design is to capture tailings in a large 900 acre lake tailings basin and that lake will have reactive waste inside of it. And to prevent that reactive waste from escaping that basin. One of the methods Polymet mind will use will be to add a layer of bentonite. Now bentonite essentially is cat litter, not perfectly but just think of it as cat litter. So they are going to line this lake with clay that litter clay. And we pointed out in a Supreme Court agreed there is no evidentiary support that this is going to work or that it has worked before this is a test a live action test in the Boundary Waters wilderness area that bet my fingers crossed, is going to work last not sufficient. And the Supreme Court said that isn’t sufficient. And so they’re going back for what’s called a contested case, hearing on that issue for the permit to mine.

That’s gonna be important a little bit later. Okay, so keep that in your head. The other permits that Polymet has would be this Clean Water Act permit that we’re going to talk about today. There’s also a clean air permit, which is part of a separate challenge.

All of these permits are under challenge. And I believe there’s also a Army Corps of Engineers to challenge but I’m made maybe mistaken there, because you can correct me if I’m wrong on that. Okay, there is Thank you. All of these are under challenge right now. And as I said earlier, we are making significant headway on all of these challenges, which, by the way, almost never have environmental organizations have rarely get victories, when they’re trying to use the course to challenge these permitting decisions.

The fact that we’re getting these victories, that not only because of you, but also because this mind is just not a good idea. It’s not well designed. We’re not against the concept of mining. We’re against the concept of unsafe mining. And we’re really against the concept of trying Minnesota as a test to see how I hope this works. No, we don’t want that here. That’s why we’re challenging this mind. If you go to next slide, please.

So yesterday was the oral argument for the Clean Water Act permit challenge that is at the court of appeals. In Minnesota, there’s a district court or trial court, and then you can appeal to the court of appeals, which is the

intermediate appeal. Right before you go to the final supreme court appeal. Now, you don’t necessarily always get to the Supreme Court, the Supreme Court can decide to take a case or not take a case. But you always get your appeal the Court of Appeals. So this is a huge day. Oral argument is the one in all of litigation, where you can talk directly to the judge about your case. Other than that, it’s all written briefs. And you can answer questions from judges that really show what the judges are most concerned about. And you can help them work through those concerns in oral arguments. So it’s a humongous day. Now, there were actually three decisions. So I should say three decisions that were ultimately an issue yesterday first, for the Clean Water Act permit. We asked for a contested case hearing now that’s the hearing, which a judge, not the agency, but a judge will hear the scientific evidence to see. Okay, scientifically, is this plan going to work?

We asked for that here on one of the issues we asked for was that same bentonite amendments MPCA, who issued the Clean Water permit assumed the bentonite would work, because the DNR who issued the permit to mind also assumed it would work. So right there’s kind of like a sequence there. Right. DNR thought, Ben that was going to work. PCA came in and said well, DNR said it was going to work. So therefore we think it’s going to work too. And our point there was not enough, we need to have some evidence to say that this hypothesis is going to work. The other issue was the ultimate fact that they issued the permit. So we’re challenging everything about the permit all the legal issues with it, and we’re gonna talk more about that.

We also challenge the process, the Pollution Control Agency used to make that decision. Now, you may recall there was an evidentiary hearing or trial back in January 2020. If you don’t remember what happened before COVID I don’t blame you. But in January 2020, we had significant evidence and allegations the PCA had engaged in essentially a cover up of federal EPA scientists concerns about this permit. Specifically, we found that the PCA Minnesota agency knew that the federal EPA had concerns about this permit significant concerns about the permit. Also MPCA the state agency hearing knew that if EPA sent in written comments PCA had to respond in writing and all making a written record that later on you and I and the public and people in robes

at the court of appeals to take a look at knowing that the PCA said EPA do not submit written comments. They didn’t want the comments because it didn’t want to respond because it didn’t want you to know what the concerns were. The EPA then decided to call and read these comments over the phone, PCA. So PCA knew what these comments were going to be. But for PCA as requests, they wouldn’t come in, they still didn’t make the way to the permit and reading. They’re never there. So we had this evidentiary hearing. And there’s a lot more to it than that. But fundamentally, what it comes down to is that PCA took actions to keep EPS concerns out of the record. Those were the major issues that play in these appeals. And now what I’ll do is go through the arguments that we made the arguments that water legacy, which is another environmental organization made, and the arguments that the Fond du Lac band made. And then I’m going to go through what the PCA argued and what Polymet argued. And then we’re going to talk about some of the questions the court asked of counsel as a good kind of indication as to what the court is thinking. But before we do that, I want to say, If anyone tells you, they can guarantee what a court is going to decide, based on the argument, don’t believe him for a second.

There’s no guarantees and litigation, there’s no guarantee in law. But we can be optimistic we can make some predictions understand that they might not be correct. And we can at least understand which way judges may or may not be leaning. Based on that. The other thing I want to mention before we go into it, is for those of you who listen to the argument, if if you came into the argument agreeing with us, and I’m guessing you did when PCA and Polymet lawyers were up, I bet you hated every single second of it. I bet you thought they were the worst people of all time. Keep in mind that if you don’t like opposing counsel, that’s because the opposing counsel is doing their job. So we need to think about what PCA said and Polymet that and try to give it some credit to figure out like, Okay, what, what are they saying is that persuasive? Are the judges gonna go with it that makes us better at our argument that also makes it give us a better sense of the Cordesman. But with all that being said, let’s start with what MCEA who represents us as well,

was arguing. And we were focused on what we consider to be the state law issues, the Minnesota law issues. The Minnesota law required there to be a contested case hearing. And essentially, it’s because of that bentonite issue, but more issues than that. We said Supreme Court looked at the same record on that night and said there was no evidence it was going to work. ECA relied on that. And so there were the PCA, the agency here for this Clean Water Act permit was relying on something that didn’t exist.

And that requires the contested case hearing. Fairly straightforward arguments. The other thing your argued was that the state of Minnesota regulates groundwater discharge, while the federal government regulates surface water discharge. Now, let’s take a break. Because that’s can be a confusing distinction. When you hear groundwater think water table, the aquifers and the waters in the dirt that we live on top of where we get things like drinking water, and where we can get things like municipal water often comes from that water table. That’s groundwater. Surface water is pictured here, lakes, rivers, streams, wetlands, if you actually see the surface of water, then that’s a surface water. So the state of Minnesota regulates discharges to groundwater. Federal government, to the Clean Water Act, regulates discharges to surface water.

In this permit, I talked earlier about the fact that there was a huge lake that was going to hold tailings called a tailings basin. There’s also something that’s called a category one waste pile. Think of it as a big huge pile of rocks. In both of those instances, the plant the plant is that they will pollute into the groundwater beneath them and then

Polymet is gonna build a ring around that area and hopefully capture whatever pollution they just put into the groundwater. So it’s a relief and catch, hopefully, plants.

Our argument is that there’s no provision in Minnesota law where you can release in catch like that. To the contrary, Minnesota law says, Don’t pollute, don’t put pollution into the groundwater unless you have an economic necessity in doing so. And the PCA didn’t find a necessity. I’ll explain what they argue back in a little bit. But when we think about the groundwater issue under state law, just think about that release, and catch, plan.

The third thing that we are you having to do with state law had to do with that process I talked about earlier, the process by which PC made its decisions and how that was infected, and a regular because of PC, his attempts to keep EPS comments out of the record. We talked a little bit about that in our argument in our briefs. And I’m going to talk more about it later, when we talk about the judges questions, because there’s some really interesting questions that Judge judge Jessen was asking, related to this issue. And I want to focus on those later. So our argument was focused on state law. The next argument is water legacy large. This is Paula McCabe’s she was so focused on federal law. Now there’s two main issues here. And if you listen to the chaos yesterday, you probably heard a lot about the Maui analysis. And two bells. I’m very sorry about alphabet soup. But you can’t do environmental law with lots and lots of acronyms. So I’m gonna explain what a Q Bell is. WQBL is a water quality based effluent limit, it is a scientific derived scientifically derived number, a level at which water is considered impaired and below which water is considered fine. So think of it as the result WQBL is the result. And if your permit has WQBL limits, then your compliance with the permit is measured by the result of whether or not you are actually polluting in the Polymet permit, there are no WQBLs, there instead, what are called key those technology based effluent limits or internal operating requirements, essentially, all those requirements are, what methods are Polymet using to control pollution. That’s a limitation on how you try not whether or not you succeed in containing pollution and not polluting, but whether you try. And so as you think about it, QBL has a much more strict and stringent in forcible because they are just simply, here’s the level is the pollution below it or above it, above it, you don’t comply.

Unknown Speaker
An operating limit is all about trying. And welcome to more litigation if you tried to enforce something like that, because Polymet can also always say, Well, we tried. And that’s all they really wanted us to do.

Evan Nelson
The Polo was saying that a QBL is required because the law I’m sorry, a WQBL is required because the law says if there is a reasonable potential that the impaired surface waters will have pollution and become more impaired because of your project. You have to put on a wq, though, so that’s reasonable potential analysis becomes important.

Unknown Speaker
Paula also says that under the Great Lakes initiative, which is a multi state compact that has the effect of federal law, if there is any detectable mercury in surface water because of your project, then that is a reasonable potential for pollution, which requires WQBL essentially, because mercury poisoning is incredibly dangerous and incredibly insidious. And so it has the highest, not the highest but significantly high levels of protection.

Evan Nelson
So that was the WQBL argument. It’s all based upon the idea that there’s a reasonable potential for pollution. And so we want science to derive a number above which they cannot go.

Now the Maui analysis. Now, Maui was a United States Supreme Court case from I believe 2020, if not to 2019 very, very recent decision. And in that case, the Supreme Court said that even if pollution is discharged into groundwater first remember groundwater is they regulated, but then it percolates through the groundwater and becomes surface water, which is federally protected. If you know that that pollution is going to go through state groundwater into federal surface water, Maui says you have to do a clean water analysis of the reasonable potential of that pollution, to impair water. For Maui, there was some confusion on this point, there were some federal circuits and some state agencies that were interpreting the Clean Water Act to say if something goes through groundwater than the Clean Water Act doesn’t apply at all. And then there were some, including the EPA itself, who were saying no, if it goes through groundwater and surface water, we need to regulate that which goes through groundwater.

Unknown Speaker
In court clarified the law, did not change the law, clarified the law. And instead, ever since 1970s, when the Clean Water Act was permitted, this is what it’s always meant. It’s always meant that we’re trying to protect surface water. And if we know that pollutions go next to the state groundwater to get there, that’s still a solution we’re concerned about.

Evan Nelson
In this case, the PCA did not do an analysis of the groundwater, because it was relying on the interpretation that the Supreme Court rejected. So Paula is saying that they need to go back to the drawing board babying the agency did to go back to the drawing board and do this analysis, because they didn’t do it. So those were her arguments. Now. Now I’m going to talk what’s the band’s argument?

The Fond du Lac, Lake Superior Chippewa. And if you go to the next slide, please. Thank you. For the Fond du Lac band did not really have any, actually, they didn’t disagree with any argument that you’ve heard so far. They agree with all those arguments. But theFond du Lac band has a unique historical, right, standing in this case, and that is because under treaties, and under federal law, specifically the Clean Water Act, the final like band is considered a sovereign state, just like Minnesota is a sovereign state, just like Wisconsin is a sovereign state, despite the Green Bay Packers. It is a sovereign state. So because it’s a sovereign state, it is considered a regulator under the Clean Water Act, just like Minnesota is a regulator just like Wisconsin’s regulator, Fond du Lac band is a regulator. And in this case, they are a downstream regulator, because the pollution is going to occur in the state of Minnesota, it’s going to flow through groundwater and surface water that eventually flows through the Fond du Lac band reservation. And therefore, because it is a downstream regulator, its standards need to be complied with. No different than if Minnesota polluted water that went into Wisconsin, Minnesota, we have to consider Wisconsin standards.

Minnesota has to consider the Fond du Lac band standards.

And, again, I’m going to talk more about this when we talk about the judges questions. But this, I believe, wound up being a very powerful and important argument for the Court to hear and understand, because the Fonda like band standards, or mercury especially are more protective, more stringent than Minnesota.

And the reason that’s important here is because mercury accumulates as it goes downstream. Mercury does not go into the water and then kind of dissipate from there and just get less polluted as it goes downstream and actually gathers up and this tissue in the river as it goes downstream. So if you pollute mercury in the head of a river, it’s going to be worse for human consumption and wildlife consumption and wild rice consumption downstream.

So that’s why it’s important. And what’s significant here is the PCA

They did not consider at all the band’s water quality standards. They just didn’t do it.

So that’s, that’s the significance of the band’s argument.

Friends of the Boundary Waters
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Evan Nelson
Well talk about PCs arguments.

So the Pollution Control Agency argument, and this is also their argument they using public and obviously argument that Polymet uses quite a bit, too, is that the Polymet mind is the most carefully reviewed project in Minnesota history.

Okay, it’s been reviewed for a long time, but I mean, it was carefully reviewed, or at least, I think there’s lots of evidence to say that the carefulness of the review was the care they took in making sure the record didn’t include any evidence that was bad about the mind.

That’s just me. That’s not what the PCA says, obviously. But the PCA his argument was that, first of all, let’s talk about that groundwater issue, their release, and catch. What they say is that the ground underneath the tailings basin, and the rock pile is all part of the facility.

That’s all one big facility, and the facility can’t discharge outside of the facility, into the groundwater. And here because that entire facility, and I gotta think of a facility of like a big fear, right, like what you can see, also contains what’s beneath it, and that’s the facility. And so therefore, because it’s being captured at the edge of that sphere, at the edge of that facility, they’re not discharging into the water into the groundwater, excuse me.

When it comes to the argument about cube ELLs, they say, there’s no reasonable potential for these pollutants to impair waters, because the permits going to work, because the permit says, You can’t discharge into surplus water. Therefore, there’s no reasonable potential.

I mean, I think that’s a bit like saying my son’s room is clean, because I told him to clean it without checking whether it’s clean, but that’s their argument. They also say that a reasonable potential is not required under the law for various reasons as to Mercury and sulfate and the different toxic metals that we’re talking about.

But in each case, they’re saying that that Maui analysis that groundwater and surface analysis we talked about earlier, that doesn’t matter, either, because all of that groundwater is being captured by that containment system in the facility. Okay. So they, again, are assuming that containment system is going to work. And so therefore, there’s no need to analyze what’s going to happen, if it doesn’t.

And then as to the permitting process itself. This is a copy of the letter that was going to be sent from the EPA to the Pollution Control Agency, but then wasn’t because PCA asked the EPA not to submit written comments.

Their argument kind of boiled down to a harmlessness argument. They say that what does this really matter? Because now we all know what the EPA was concerned about. And also, EPA always had the right to object to this petition, which by the way, is true. Any Clean Water Act permit is issued by a state. And then the EPA has veto power over that permitting decision. So they’re interpreting the fact that EPA did not object to being the same thing as saying EPA was okay with this permit.

That’s that’s their argument as to do this. We’ll talk about Polymet. Very briefly. Polymet’s argument is it is complete echo of the PCAs argument.

They and I’m not saying this disparage their argument that they they just agree with the agency on surprisingly, although there’s one thing that I thought was interesting to keep in mind

We were talking about QBLs earlier water quality based, scientifically derived numbers. If you go above you’re not in compliance with the permit.

Unless lawyer, interestingly said that if the agency wants to impose those limits that Polymet will probably object.

I think there was an interesting moment of candor, which shows you that QBLs scientifically based on limits of what is actually occurring, far more stringent, are enforceable on that does not want them in the permit. Other than that they agreed with everything agency did the agency was fantastic and did the best job ever, is what Polymet says. That’s what it was.

Alright, so questions from the court. And I said earlier in this presentation that this is the one time you can talk directly to the judge. And on one time, you could answer the judges question. So it’s really important to think about what these judges were asking because that’s an insight into what they’re thinking. We had three judges on our pilot panel, we had Judge Johnson, we had judge Jessen. And we had judges here.

Judge Johnson was the one who was if you watch presiding he was the one who was kind of in charge and kept the time going. And he we know from previous experience here at Maslon is very concerned with what’s called the plain language rule of interpreting statutes. His view of the judiciary is a judge has no power and must have legislative body has expressly said, here’s what you can do.

Here’s what you can’t do. And so he wanted us to point him to direct that shoots and direct regulations. And think about the exact words that are being used in those statutes and regulations. That’s not a good nor bad thing. For us. That is just the way that he’s thinking about this case. Regardless of if he thinks the mind is a good idea or not, or if he thinks it’s going to work or not, we can point him to something and statutes that says he’s empowered to act, he’s probably not going to act.

So because of that interest in what the statute says he was the one who asked mass murder, he was arguing, arguing for the band is to band a state. Underneath these regulations can thicken the band have its own enforceable water quality standard. And Judge Johnson looking at the statute that Matt was looking at and said, I don’t see Indian tribes written here. It just says state. And Matt was then able to take that question and answer it by saying, well look at these other statutes, which define states.

And those definitions of states include Indian tribes, that was a really key moment. Because that tells me that Judge Johnson is taking seriously Matt’s argument that the band has its own standards that should have been followed, or at least should have been analyzed. Because there’s statutory support for that argument. So that was that was key from from Judge Johnson.

Judge Sleater was asking a couple of questions that I think are important that we should think about first, he asked him questions about that bentonite question that relates to the contested case hearing. And he was getting at what are some of the maybe weaknesses or things that are less clear about this case? Because he was saying, isn’t the contested case hearing for the permits in mind different than a contested case hearing for a pollution discharge permit? Because the permit to mind has to include how you’re going to clean up any pollution, and the bentonite is part of how they’re going to clean up and collect pollution, whereas the discharge is just trying to prevent pollution in the first place. And so he was kind of asking, Is that a difference that makes a difference?

And I think at least had some very good answers as to why it’s not because essentially, like I said, Pollution Control Agency relied on the DNR and the DNR was found to have no evidence for its conclusions whatsoever. So they’re still pointing at no evidence.

Because Johnson also has some interesting questions or some important questions, I think about the Maui case. And a lot of that discussion, I felt got very lawyerly. It got buried in the weeds on Supreme Court law and federal law and water protection law.

The reason why I think that’s important is because the judges are now wrestling with that. And I think what we saw what the judges asking Paula Maccabee, who was counsel for water legacy, what environmental law meant. And as an appellate lawyer, if the judges are asking you questions as if you’re the expert on the law, that’s a good position to be in, if you can give a mini like water protection law one on one, and have a presentation to the judges, because that’s what they want. That means they trust you. And trust and credibility is an incredibly important thing for a lawyer to have before a court. And I believe that Polymet can be did a great job giving trustworthy, credible and clear answers to judge teachers questions. But I think the judge fleeter and other judges, too, are really, really concerned with what Maui means. For this permit? Does Maui mean that they have to do reasonable potential analysis for the groundwater that’s going to turn into surplus water down the road?

Finally, Judge Jessalyn. I think I counted four times, asked questions about the dangerous signals, or the transparency concerns here. All of those questions were relating to the fact the PCA wanted EPA records, or comments out of those records. They’re her. Now, of course, he was saying this is hypothetical, let’s say we rule this way. But I still think that that actually asked the questions a lot is important To her. That was a dangerous signal. There’s something wrong was happening at the agency here. But she wanted to know, what does it mean, when he was asking questions about what would a remand look like? What instructions will be give the agency where to where do you want us to send this? What do you want us to do?

All of those questions really boiled down to the question. “If we agree with you, what should we do about it?”

Now a couple things about that. That’s always a great question to understand and a great question to answer because I think it means the judges, on some level agree with you that something is wrong. And so you’ve kind of gotten past one hurdle.

Now here, this is a difficult question for us to answer because in truth, and if you read our briefs, there are many different things the court is able to do any one of which would be good for us. But some of them would be way better…way more important. And as we work through our argument, as we practice as we thought about this, we realized that the best thing to do here, and this is what we told Judge Jensen, is this needs to be sent back to the Pollution Control Agency so they can reopen the public comment period. And when they reopen the public comment period that allows EPA to put in its comments requires PCA to respond to those comments. It also allows comments on legal issues, it would force PCA to resolve these legal issues, it would force PCA to say how the Maui analysis works. It would force them to contend with the band’s requirements, it would force them to deal with the groundwater question, it would bring them back to the drawing board and do the analysis they should have done in the first place, and did not do. That’s where we left that question.

And then finally, before we go to next slide, Maya, I think the most important exchange of the entire argument happen at the very end of the argument. And that has to do with the band’s water quality permits. The very end. Judge Johnson was asking that about whether the band had different standards than the state of Minnesota. And the key question because essentially what Judge Johnson was asking was whatever, it doesn’t matter, if they ignore you doesn’t matter. And why does it matter? And Matt was able to explain why it matters because mercury is a city because mercury accumulates, the band has ceremonial and substantive fishing rights, treaty rights, historical rights, that are implicated with mercury poisoning.

And for that reason, the PCA had to consider the band’s standards. And then just just said, I’m looking at the fact sheet, which is like a document that agency put together that’s part of the permit. And she said, Now, this fact sheet says that the permit doesn’t allow for any discharge to protect this state’s waters. Does that does this state mean just Minnesota and not the band? Which man said, Yes, that’s what that means.

Email, because you had two judges focused on the same issue, and focus on it in a way that illustrates why it’s important and why the PCA was wrong and why we need to have the PCA go back at the court of appeals, we just need to you don’t need three, the two judges on your side of the rule in your favor.

So all that said, I don’t know what’s going to happen next over the next slide.

All I know is the court appeals by statute has 90 days issue a decision that puts the decision likely sometime after Christmas or before January 20, before Martin Luther King, Jr. Day, in that timeframe, they could issue it tomorrow. I truly doubt it’ll be anytime soon.

A lot of you might think that’s a long time. I’m here to tell you that across the United States, Minnesota is really well known for being timely and fairly speedy on its judicial decisions. In federal courts, there is no time limit, and you can wait for years sometimes before you get your answer. So we have to wait three months after the Court of Appeals issued its decision, I am sure that either side will appeal it depending on how it turns out. And we would appeal it to the Minnesota Supreme Court for Polymet in the agency would appeal it to the Minnesota Supreme Court. Supreme Court, like I said earlier, might take it might not take all of that would happen within about three months after the decision system. And Supreme Court takes us then we’re probably another year in Supreme Court.

If the Supreme Court doesn’t take it, then the court of appeals decision stands. And that’s the law of the land for this case. And it’s either going to go back to the agency or unfortunately, there’d be a bad permit out there.

But I really think that we had engaged judges who asked significant and important questions about this case, you could tell that each of the judges had studied at these issues had studied the record, have looked through the briefs very carefully for all sides. And it was in an I was impressed and pleased with the level of question that we got.

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Chris Knopf
I want to return to an issue that that you brought up that Paula Maccabee from the attorney for water legacy disgust and that was the the sort of cumbersome acronym of QBLs here. So we have these water quality based affluent limits. And so for for people watching this is that those are the numeric limits. And that would be the equivalent of a speed limit on a road. Let’s say that the speed limit is 30 miles an hour. And if you go 35 miles an hour, you know you’re breaking the law. And and what what the what our state regulators instead of instead of going for something that would be clear, they had the equivalent of these operational limits so that if you use your signal light and if you if you use your seatbelt, then you were complying with a law and and basically those operational limits where PCA was not protecting our resources enough and what the US EPA was trying to make clear in its letter that was never sent to the pollution control agency and say, look, if you just say, you know, wear your seatbelts and use your signal light, you can be going, you know, 100 miles an hour in a school zone and still be complying with, quote “The permit.” And so maybe you want to talk about what a permit shield is. And that was brought up during the oral arguments in how the permit can shield someone who’s really a polluter?

Evan Nelson
Yeah, Chris, that’s a great analogy as well and use the analogy of just if you try, then you … then you pass the permit, as opposed to whether or not you succeed, to see if you comply with the permit. Yeah, that does lead into what is often called a permit shield, and the shield protects the permittee protects the mining company from any liability, because of those any disaster whatsoever the mining company Polymet, or Glencore, really can say, oh, you can’t sue us, because we were following the permit. You can’t force us to pay for cleanup, because we were following the permit. And if the permit is written in such a loosey goosey way, that as long as you’re trying, then you’re following the permit. You’ve created a shield from any liability for this agency, or human mining company. And mining companies are notorious for privatizing profit and socializing loss. They are notorious for taking extracting, taking profits for it and then leaving states and citizens and taxpayers with humungous cleanup bills.

I mean, we didn’t have time to go through the examples right now. But suffice it to say that there are several states that have million dollar, billion dollar cleanup bills, and the age the mining company has gone by. So that’s why perma shield is important. That’s why cue bells. It sounds very technical. It is very technical. It’s also incredibly important.

So I actually I saw a question here that I want to handle first. So someone talks about, where does Glencore sit here. Glencore is not on the permit, because Polymet obtained the permit, before Glencore bought up enough shares to become the controlling owner of Polymet. It’s, it’s a shell game. Polymet gets the permit in the company on the permit is Polymet, which is owned by Glencore. If there’s some sort of issue, then Polymet declares bankruptcy. Glencore is fine. All the profits have been captured, and they’re sitting in Switzerland and Glencore and Polymet, the legal fiction and Polymet is gone. So that’s why it’s important to try to get Glencore on the permit, put them on the hook, we have some of those issues being raised in the permit to mine. And that’s not really an issue here. But it’s important to be thinking about that.

Someone else asked a really good question about the administrative law judge in a contested case, hearing your before an administrative law judge, the administrative law judge hears testimony and issues, findings of fact, conclusions of law, and gives you an order. That order then goes back to the commissioner. And as the person asked the question, pointed out, the commissioner or the agency, the Pollution Control Agency, can completely ignore what the administrative law judge said. However, if they did ignore it, then when you go to court later on, you can point out that delta. And you can point out that difference to say the agency was acting in an arbitrary and capricious way by ignoring the findings of the administrative law judge. So well, legally, they do not have to follow the ALJ. They do so at their own peril. That’s why a contested case hearing is important.

I see a question here about the lawyers have layers of protection analysis, and I’m going to be frank, I do not know that. I will look into that. Thank you, Robert, for pointing that out. I will. I’ll take a look at that. I do not recall it from my legal research. In this case. That doesn’t mean it’s not there. So we’ll see what….

Someone else pointed out about Glencore. Glencore is a internationally renowned bad actor. That is absolutely true. There is a deep irony, and a lot of mining proponents position and one of the things you’ll hear them say is if we don’t get the mind here, then we have to rely on other places that have horrible human rights abuses, like, for example, the Congo. (whispers) Guess who owns the mine in the Congo?! It’s the same people in this mine. So it’s very duplicitous, and sarcastic believe them to use that argument.

But, you know, we have some thoughts and efforts to maybe try to make it so that people with proven bad records have more difficulty getting permits, or have to prove some sort of a showing that they’re no longer bad before they do. That’s not really related here. But part of the larger issue that we see with mining.

Another issue we see and a fundamental issue that we see. And my if you go to the next slide on the PowerPoint, is the fact that these mines don’t work.

copper-sulfide Mines produce acid mine drainage, and they especially don’t work in water rich environments. And what Polymet and agencies are blessing and Polymet is trying is to use Minnesota as a testing ground to see if this brand new plan will work. And what we’re saying is Minnesota, not a laboratory, especially not Boundary Waters, but really just anything in Minnesota, I mean, Wilmar, Moorhead, the Boundary Waters Lake Superior are in downtown St. Paul. This is not the place to test out minds that have never worked before. And so we’ve, we have some legislative partners, and we’re working with them to have introduced the Prove it First bill and it has been introduced. There currently has not been any hearings on this bill. It’s been kind of gummed up in legislative kind of backroom policymaking procedures. And so someone in the comments said, Can we put pressure on legislature legislators? And in Yes, and here, here’s where you can do that you can ask them to have a hearing on Prove it. First bill, have a hearing on whether or not Minnesota is appropriate test out on safe mines.

And you can learn more information about Prove it First on the Friends of Boundary Waters website. If you drive around the Twin Cities area or Minnesota and see soon someone with a lawn sign that says Prove it First. Knock on the door. Introduce yourself and say hey, you and I just became best friends. Let’s talk about this bill. We’re trying to build this up. There we go. Chris…Chris has got one right there.

The and you can also talk to Chris reach out if you want a lawn sign of your own.

That’s the pressure we want and if the pressure is gonna be helpful, and the legislative body is to get Prove it First passed.

Chris Knopf
That was a tremendous job by Evan Nelson to summarize and analyze some complicated legal concepts. Thank you again Evan. We at Friends that Boundary Waters will keep fighting to protect our clean water and we would love to keep connecting with you. Please visit our website Friends-BWCA.org again, that’s Friends-BWCA.org. Thank you for joining us. Please join us again for our next Friends of the Boundary Waters podcast.

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On the Friends of the Boundary Waters podcast, we bring together people who share a love of the incredible BWCA wilderness in Northeastern Minnesota. The podcast will features scientists, political figures and experts in outdoor recreation and wilderness skills to help you learn new facets of the Boundary Waters Canoe Area, the most visited wilderness in the United States.

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