The state Department of Natural Resources (DNR) is fighting an appellate court’s decision to reject three permits the DNR issued to PolyMet Mining Corp. for its $1 billion copper-nickel mine plan and to order a hearing on them.
The agency petitioned the Minnesota Supreme Court on Wednesday, one day after PolyMet filed its own petition for review.
“The court of appeals’s decision misconstrues statutory provisions, abrogates agency authority and erodes long-established separation of powers principles,” lawyers for the DNR said in the petition.
The lower court, which ruled in January, erred in four ways, the DNR argued. First, state law only requires a contested case hearing when it would help the commissioner make a decision and not just because facts are disputed. Changing the rules for such hearings would have “profound statewide ramifications” for permit reviews so the Supreme Court should take up the matter, the regulator said.
The Appeals Court also ignored a state law that said only owners of property that “will be affected” by the mine are able to request a contested case hearing, the agency said. It also wrongly granted the hearing based on two issues outside the administrative record: the catastrophic collapse of the mine tailings dam in Brumadinho, Brazil, last year and Glencore’s new majority stake in PolyMet.
Finally, it said the Appeals Court wrongly required the DNR to set a clear expiration date for PolyMet’s permit to mine instead of the performance-based term the DNR has historically used.
DNR Deputy Commissioner Barb Naramore issued a statement saying the DNR welcomes court review of its decisions: “In this case, the Court of Appeals’ decision presents new interpretations of state law with significant implications for the state’s regulatory framework. As such, we believe the ruling merits review by the state’s highest court.”
The mine would be the state’s first copper mine and first hard-rock metals mine. Hard-rock mining is much more polluting than taconite or iron ore mining, which Minnesota has long engaged in, because of the sulfide and heavy metals released when ore is crushed and processed. The hotly contested mine project has generated deep divisions between conservationists and those who say the economic benefits are worth the environmental risks. Both sides reacted quickly to the DNR’s decision.
“DNR is digging in and doubling down on past mistakes in order to appease PolyMet and the copper-sulfide mining industry,” said Chris Knopf, executive director of Friends of the Boundary Waters Wilderness. “The legal remedy ordered by the Court of Appeals involves an objective look at facts and science. This is another example of DNR teaming up with the industry it is supposed to regulate.”
Minnesota House Minority Leader Kurt Daudt, R-Crown, said he applauded the DNR’s move.
“The harmful decision by the Court of Appeals represented another setback for this long-awaited mining project, and would have created further regulatory chaos for future permitting,” he said. “I hope the Supreme Court will move quickly and recognize the flaws of the lower court decision. It’s long-past time for the PolyMet project to move forward.”