The Minnesota Court of Appeals has struck down the permit to mine and dam safety permits for PolyMet’s proposed sulfide mine. The Minnesota Supreme Court is reviewing the decision, and we expect the Supreme Court to rule on the case in spring 2021.

While the global mining industry and governments across the world are moving away from storing liquid mine waste behind “upstream” earthen dams, the Minnesota DNR has given PolyMet a permit to build the largest upstream dam in Minnesota history. 252 feet high, it would hold back hundreds of millions of tons of polluted water and mine waste - forever.

On January 13, 2020, the Minnesota Court of Appeals reversed DNR’s decision to issue the permits and required DNR to hold a contested case hearing.  The Court rejected DNR’s argument that none of our members had sufficient standing to request a contested case, holding “The DNR’s interpretation would effectively preclude any nearby residential property owner from seeking a contested-case hearing, regardless of whether the effects of mining would extend to them. We agree with MCEA that adopting the DNR’s interpretation would render illusory the right to a contested-case hearing, which would be contrary to the presumption that the legislature intends all parts of a statute to be effective and certain.” The Court also noted that “the MCEA argues that DNR had an independent duty … to determine whether a contested-case hearing was required under the statutory criteria.  We agree.” The Court made clear in its opinion that the DNR should consider new information—such as the Brazil dam collapse—at the contested case hearing, and that its opinion “is not intended to limit the scope of the contested-case hearing on remand.” The Court also made extensive reference to a “friend of the court” brief by former Governor Arne Carlson, MCEA board members Ron Sternal and Alan Thometz and others addressing the adequacy of PolyMet’s financial assurance. In March 2020, the Minnesota Supreme Court announced it would review the Court of Appeals decision. We argued the case in October 2020. After the oral argument, DNR filed a motion to supplement the record. We opposed the motion. On November 16, 2020, the Supreme Court denied DNR's motion. The Minnesota Supreme Court's decision on the merits of this case is expected in early 2021.

MCEA challenged the Minnesota DNR’s decision to issue PolyMet’s Dam Safety Permit and Permit to Mine because the permits violated applicable rules, lacked enforceable standards, were based on incomplete plans, and relied on unproven technology.  We asked DNR to order a contested case hearing to build a factual record before issuing the permits.  In November 2018, DNR dismissed our issues, denied the contested case hearing request, and issued the permits.  After the January 2019 Brazil dam disaster, MCEA discovered that the safety model that predicted the PolyMet dam would be safe also had been used—by the very same expert—to predict the Brazil dam was safe. On that basis, we asked DNR to stay (suspend) the dam permit and reconsider its decision to issue the dam permit.

COVER IMAGE: CORREGO DO FEIJAO DAM COLLAPSE AFTERMATH, BRUNO CORREIA/ AP