Minnesota Supreme Court reinstates environmental groups’ challenge of NorthMet air permit

ST. PAUL — An appeals court will again consider a challenge to an air permit for the proposed NorthMet copper-nickel mine.

In an opinion Wednesday,

the Minnesota Supreme Court said the Court of Appeals improperly denied an appeal by a coalition of environmental groups because they served their petition to company officials, not company attorneys, within a 30-day window.

The Court of Appeals must now consider the appeal of an air permit for NewRange Copper Nickel, the joint venture between PolyMet and Teck formed earlier this year to see the advance Northmet copper-nickel mine and processing facility near Hoyt Lakes and Babbitt.

The air permit, first approved by the Minnesota Pollution Control Agency in 2018, has been appealed before. In July 2021, the Court of Appeals sent the permit back to the MPCA for “further consideration and additional findings.” On

Dec. 20, 2021, the MPCA stood by its decision to grant the permit,

opening the door for another appeal.

The coalition of environmental groups sought to appeal the permit again, but the Court of Appeals rejected their attempt, siding with PolyMet, which had argued its attorneys were served the petition on Jan. 20, 2022, 31 days after the MPCA’s decision — one day outside the 30-day window for appeal allowable by law.

But on Wednesday, the Supreme Court reversed the lower court’s decision.

The opinion, written by Associate Justice Gordon Moore, said PolyMet’s chief executive officer and registered agent were served the petition via certified mail on Jan. 19, 2022 — a day earlier than the company’s attorneys — and that sufficed.

“This service — along with the other steps appellants took — was effective to invoke appellate jurisdiction and was timely under section 14.63’s 30-day service deadline,” Moore wrote. “We therefore conclude that the court of appeals erred by dismissing the appeal.”

Environmental groups applauded the Supreme Court’s decision.

“PolyMet has, yet again, failed to limit Minnesota’s review of its flawed proposal — this time on narrow procedural grounds,” JT Haines, Northeast Minnesota program director at the Minnesota Center for Environmental Advocacy, or MCEA, said in a news release. “We applaud this decision from the Supreme Court and look forward to a full review at the Court of Appeals.”

MCEA, Friends of the Boundary Waters Wilderness and Sierra Club petitioned the court to review the MPCA’s air permit decision.

Bruce Richardson, a spokesperson for NewRange, said Wednesday’s decision “does not affect the validity of NewRange’s air permit or say anything about the environment. The air permit remains valid and protects Minnesota’s air quality.”

“The court’s decision is based solely on required appeal procedures in litigation. The case now returns to the court of appeals where NewRange and the Minnesota Pollution Control Agency will defend the agency’s thorough review of the project’s air emissions and the decision-making process in issuing the permit,” Richardson said.

The MPCA did not respond to the News Tribune’s request for comment.

Environmental groups have long argued against the air permit, citing a

technical report released by PolyMet

in March 2018 — 10 days after the air permit’s public comment period ended — which outlined the company’s plans to recover 118,000 tons of ore per day instead of 32,000 tons per day — the amount listed by the company in permit applications. Increasing the size of the operation would undoubtedly mean air emissions would exceed the 250 tons of regulated pollutants per year allowed in the permit, opponents said, accusing the company and agency of engaging in “sham permitting.”

While the Minnesota Supreme Court ruled in February 2021 that the MPCA did not need to investigate the claims of sham permitting, it did send the permit back to the lower court to review whether PolyMet’s report for a potential larger mine “undermined” the MPCA’s conclusion and whether the company had withheld key information from regulators.

The MPCA in December 2021 said PolyMet hadn’t, stood by its permit and reiterated that if PolyMet wanted a bigger mine, it would have to go through the permitting process to do so.

The NorthMet project still faces a number of lawsuits. And earlier this month,

the U.S. Army Corps of Engineers revoked

a key federal discharge permit after determining it “does not ensure compliance with water quality requirements of the Fond du Lac Band of Lake Superior Chippewa.” The company can still reapply for the permit.

Jimmy Lovrien covers energy, mining and the 8th Congressional District for the Duluth News Tribune. He can be reached at jlovrien@duluthnews.com or 218-723-5332.