There’s something rotten in Minnesota, a reprise

What follows is the republication of a LeftMN story originally published on September 16, 2019. On September 3, 2020, Ramsey County district judge John Guthmann issued his order saying, in effect, Sure, the MPCA cut some corners and put some lipstick on the pig, but hey, nobody’s perfect.

The subject of his order was the conduct of the Minnesota Pollution Control Agency in issuing a soft-ball water discharge permit to PolyMet Mining — and covering it up — which the Fond du Lac Band of Ojibwe and environmental nonprofits sued to contest. (The MinnPost story at the link by Walker Orenstein is a much better backgrounder than I’m providing; I recommend that you read it before reading this LeftMN story from last year.)

But in summary, the judge found that the MPCA asked the federal Environmental Protection Agency to ixnay on the ommentscay until the public comment period was over on the final draft of the MPCA’s water discharge permit to PolyMet. In collusion (let’s be honest) with leadership of the EPA, the comments were not only withheld until after the public comment period; they were never made public. Well, until a retired senior staffer at the EPA with some fidelity to the Clean Water Act published them; he leaked them, actually.

Well, hell, says Judge Guthmann, it’s all close enough for government work. It came out in the end, so what’s the prob? I am paraphrasing a little, but not much.

The problem, naturally, is that when a party demonstrates a willingness to prevaricate, it’s hard to know whether to believe anything it says. Prudent people don’t, but the judge did. (As a complete aside, this is why trying cases to judges rather than juries — when given the choice — is usually a bad idea.)

Gosh, says the MPCA, we were just trying to head off some bad publicity.

I beg your pardon? I’d say that I was unaware that the MPCA was in the PR business for PolyMet, but that hasn’t been true for me since about 2014, when the MPCA was part of the Minnesota Department of Natural Resources’ tent revival show on behalf of PolyMet.

As you’ll read in the following story, I had misgivings when Judge Guthmann issued a discovery order in these proceedings that did not allow for the depositions of the leadership of either the MPCA or Region 5 of the EPA.

It gives me no pleasure to say that I think I was right. Here’s the story from last year:

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Another revelation in the PolyMet scandal came on [September 13, 2019] with the disclosure of another set of emails between the abysmally-named Minnesota Pollution Control Agency and the equally-inaptly-named federal Environmental Protection Agency. With friends like them, the environment needs no enemies. The hed for the article on the Strib website is New email deepens mystery over PolyMet water permit. This would be funny if – well, no it wouldn’t. But it isn’t a mystery at all.

We’ve known for some time that personnel at the MPCA, including then-Assistant MPCA Commissioner Shannon Lotthammer – now an Assistant Commissioner at the Department of Natural Resources in the Walz administration! – worked on persuading EPA honchos to keep their mouths shut about criticism of the toothless water discharge permit that the MPCA proposed to issue. Documents just received by the environmental bulldog Water Legacy show that Lotthammer was carrying water for her boss, John Linc Stine, then the Commissioner of the MPCA.

The earlier Lotthammer email telegraphed the involvement of others, which is why the new batch is more revelatory than mysterious.

Now we know with certainty that Commissioner Stine beseeched top Trump officials in Region 5 of the EPA not to make written comments about the water discharge permit.

The documents contain an e-mail from Stine to Cathy Stepp, President Donald Trump’s appointed head of EPA Region 5 in Chicago, and her chief of staff, Kurt Thiede. In the e-mail, dated March 12, 2018, Stine thanks the two federal regulators for a phone conversation and says his assistant commissioner for water, Shannon Lotthammer, will follow up with Thiede regarding the “Region 5-MPCA agreement I mentioned on our call.”

The next day, Lotthammer sent an e-mail to Thiede asking Region 5 not to send written comments on the draft permit during the public comment period and instead follow a 1974 Memorandum of Agreement in which the EPA delegated enforcement authority to Minnesota.

The memorandum referred to goes back to Reserve Mining dust up days to delegate permitting authority from the EPA to the MPCA under the Clean Water Act because the MPCA had such great fidelity to the law.

Hahaha. Well, it did. But it doesn’t now. What was happening here was that Lotthammer and Stine were asking that the MPCA be allowed to slip the environment, the Ojibwe bands, and the citizens of Minnesota a mickey and issue an essentially worthless water discharge permit. Which is what they did.

The 1974 memorandum of agreement does not authorize the MPCA to ignore the Clean Water Act. Which is also what they did.

And no one would have been the wiser if some whistle blowers at the EPA hadn’t, well, blown the whistle and disclosed their concerns. Minnesota owes them a debt of gratitude.

There have been some efforts to claw Minnesota back from this disaster. The Inspector General of the EPA commenced an investigation to find out What The Hell Happened, and the IG’s office has recently made the investigation nationwide, so PolyMet may someday be known as the tip of the iceberg.

Minnesota’s Legislative Auditor, Jim Nobles, has also commenced an investigation into “permitting irregularities.” The scope of that inquiry seems to be limited, though.

The issue is most directly joined – at least for the moment – in a lawsuit brought by the Fond du Lac Band of Lake Superior Chippewa and others contesting the issuance of the water discharge permit by the MPCA. The suit was in the Minnesota Court of Appeals, but the court stayed the water discharge permit and sent the case to the district court in Ramsey County to make a record (that is, to take testimony and receive documents) on the permitting irregularities, which is great. (As an aside, cases of agency decisions are appealed directly to the Court of Appeals, and that’s what happened here; it didn’t pass through the district court first, so the procedural posture is a little unusual.)

Well, it is great, except that the district court has a blinkered view of what the case is about. According to the district court, the parties objecting to the permit (the “Relators”) can only ask a few “written deposition questions” of a few people — none of whom are the four MNPCA and EPA leaders identified above — and request a limited number of documents, which is odd because the Court of Appeals picked up on the fact that something was pretty seriously amiss just from reading the newspapers. No actual depositions of anybody are allowed.

It surprises me that a judge of a trial court in Minnesota would be so naïve as to think a real record could be made without the depositions of people like John Linc Stine, Shannon Lotthammer, Cathy Stepp, Kurt Thiede, and their factotums, and representatives of PolyMet, too. There is no substitute for Professor Wigmore’s Great Legal Engine of Truth: cross-examination. Surely the judge knows that.

You can’t cross examine a written answer.

Update: Wouldn’t you like to know what Commissioner Stine said to the EPA in the telephone conversation with the EPA that prompted Lotthammer’s email? I would. But apparently the Ramsey County judge isn’t interested.

Any “fact finding” in this case without the depositions of the relevant persons is a white wash and a joke.

It is apparent to me that this case is more like a RICO case than an administrative case about environmental regulation. It is high time that Governor Walz, Lieutenant Governor Flanagan – an Ojibwe whose fellow nation members are directly affected by this subterfuge – legislative leaders, and the judiciary, too, figure that out.

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Readers here know that I have written several times about the importance of getting the water permit right the first time. The last time I wrote about it was in a story that was published in MinnPost.

Miners regard a permit as inviolate and irrevocable. When the Minnesota DNR reviewed the tailings dam permit it issued to PolyMet after the Vale dam collapsed in Brazil, PolyMet objected and said that the permit was irrevocable, like a property right. The DNR said, no, that’s not right, but you can see where miners are coming from.

And by the way, the DNR reaffirmed the permit of a tailings dam type that has failed not once, but spectacularly three times in the last handful of years, twice in Brazil and once in Canada.

But a water discharge permit like the one issued to PolyMet is virtually written in stone; they never get made stronger, only weaker. And significantly, if a permit, improvidently weak or corruptly made is issued, the public cannot sue for pollution, regardless of how bad it is, because the miner can defend by saying, “We’re in compliance with the permit.” That is exactly what happened with the Flambeau mine near Ladysmith, Wisconsin. The permit shield is the miner’s friend. As I have observed before: if you have the right regulators, they are you defenders, not your regulators.

This is why the actions of Stine, Lotthammer, Stepp, and Thiede, undoubtedly in concert with representatives of PolyMet, are so odious and corrupt. I called it “slipping a mickey,” because that is exactly what it is.

It is stunningly irresponsible for Governor Walz to tell MinnPost’s Walker Orenstein that, “I think we can do this right,” and that, “The water permit was not compromised.”

Holy s**t, who does he think he’s fooling?