by Steve Timmer

Oct 28, 2021, 4:00 PM

When I, Good Friends, Was Called to the Bar*

*The title of this story is a little oblique. It’s the title of my favorite Gilbert and Sullivan patter song. Nobody, and I mean nobody, captured the pettifogging, soft-shoe artistry of lawyers better than Gilbert and Sullivan. Sir William S. Gilbert, the librettist, was a barrister.

For some reason, the exchange between the judge and lawyer recited below reminded me of the song.

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There was a hearing before the Minnesota Court of Appeals (again) on the PolyMet cases; this time it was the Minnesota Pollution Control Agency’s water discharge (pollution) or Clean Water Act permit that was before the Court. Again. The environmental non-profits were arguing for a return of the permit to the agency for a contested case hearing before an administrative law judge at the Office of Administrative Hearings; there has never been one. The non-profits have never had a chance to make a true factual record of their objections to the permit, and the agency has never been required to make its factual case for the permit on the record, either, before a neutral fact finder. That doesn’t happen in appellate court. Lawyers for PolyMet want the permit to just become active, of course.

The hearing was live tweeted by several accounts, including the Minnesota Center for Environmental Advocacy’s account. There were several pithy exchanges between the court and the lawyers, including this remarkable one:

Judge Slieter: So, the MPCA’s position is since PolyMet has not been built yet, and since the modeling is a ‘worst-case scenario’ that the Maui test on groundwater pollution would not apply? MPCA’s Smith: “If it turns out there are discharges to groundwater,” MPCA can step in.

— @MCEA1974 (@MCEA1974) October 27, 2021

Parenthetically, the Maui case is County of Maui v. Hawaiʻi Wildlife Fund. Earth Justice calls it the “clean water case of the century,” and that’s not hyperbole. The very important holding in this Supreme Court case was that if pollution discharges to ground water are likely to show up elsewhere as surface water, those discharges are subject to the jurisdiction of the Clean Water Act.

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In any event, there was a lot of coffee spit on keyboards and monitors and milk coming out of noses when that tweet went up. Because what attorney Smith said was hyperbole.

You would almost think attorney Smith wasn’t from around here and was unfamiliar with the supine, industry-captured nature of the agency charged with preventing pollution of Minnesota’s air and water — and which he represents.

Of course, he’s not from around here; he’s a member of the black-hat mining law firm Holland and Hart who flew into town to drop that pearl of wisdom on an incredulous Court. I wonder if he flies first class on the taxpayers’ dime? Of course.

Attorney Smith’s argument doesn’t seem likely to have fallen on receptive ears. The Court of Appeals is quite familiar with PolyMet and the MPCA, well, and the Department of Natural Resources, too. The Clean Air Act permit, the DNR’s dam permits and permit to mine, and the water discharge permit at issue here have all been found wanting by the Court of Appeals before.

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Moreover, the Court of Appeals is undoubtedly mindful of other situations where the MPCA didn’t exactly spring into action. In the linked story, you can learn how taconite miner Minntac operated between 1992 and 2018 on an expired Clean Water Act permit. It issued a new one after monitoring undertaken of the Minntac site by the US Environmental Protection Agency, which then hectored the MPCA to get off its duff. The MPCA issued a weak permit, and it was struck down by the Court of Appeals in 2019.

One of the grounds for striking down the 2018 Minntac permit was because it didn’t have any WQBELs: water quality-based effluent limits. The PolyMet permit issued by the MPCA doesn’t have them either.

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PolyMet proposes a wet tailings basin over a square mile in size, to be lined with bentonite, which is a fancy name for clay kitty litter. Imagine finding out many years after the mine closes that the full tailings basin leaks. First of all, assuming that our MPCA would find the leaks is a stretch, but let’s indulge in a probable fiction and assume it does. Then what?

PolyMet will be dead and gone. (Open the link to see one of my favorite Ken Avidor graphics.) And practically speaking, what could be done, anyway? More kitty litter, I suppose, but the DNR has no proof that bentonite will work in the first place. The tailings basin can’t be drained; where would you put the polluted water? In the MPCA’s basement?

Update 10/29: It’s worth remembering that PolyMet bought the crushing plant and existing tailings basin from a bankrupt taconite miner, LTV, which didn’t pay for its environmental cleanup, either.

If the DNR hasn’t gotten adequate financial assurances in the bank — and it probably won’t — and hasn’t gotten Glencore on the permits, guess who will be stuck with environmental degradation and the cost of whatever inadequate remedial action that is done? The public, including the Lake Superior Ojibwe.

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This is the situation that exists in scores of locations through out the U.S. west and southwest. You would think we’d have learned our lesson by now.

The colloquy between the judge and PolyMet’s lawyer was a very small part of the hearing, but I thought it was a telling moment.