(The Center Square) – On Wednesday, the Minnesota Supreme Court ruled in favor of the Clean Air Act permit issued to PolyMet mine, overturning a Court of Appeals ruling that remanded the permit to the Minnesota Pollution Control Agency (MPCA).
The MPCA isn’t required under the Clean Air Act to investigate “sham permitting” allegations from environmental groups, the top court ruled. The lower court had “relied on an erroneous interpretation of federal law,” according to the Court of Appeals.
“This decision is another big win and a major step forward in the defense of our air permit,” PolyMet Chairman, CEO, and President Jon Cherry said in a statement. “We believe strongly that the facts and the law are on our side, and we are pleased that the court agreed with us on the law. This is a victory for the company, our many stakeholders and for everyone that supports responsible mining in Minnesota.”
The ruling follows a years-long permitting process. In 2005, PolyMet proposed a copper-nickel mine six miles from Babbitt.
Environmental advocacy groups had challenged MCPA’s decision to grant an air-emissions permit to PolyMet for the proposed mine, claiming MCPA didn’t conduct an adequate investigation into whether PolyMet intended to operate within permit limitations.
Environmentalists alleged PolyMet improperly received a synthetic minor source permit, which requires less stringent regulations since the minor source restricts emissions more than a source with emissions capability of over 250 pollutant tons annually.
Those critics allege PolyMet then sought to modify that permit to dodge stringent pollution control that would have been required if it first sought a major source permit.
The concern is that companies could exploit a loophole in pollution control restrictions, especially when using older facilities that aren’t required to install stringent pollution measures due to cost constraints.
In March, the Appeals Court said the MPCA fact-findings were “insufficient to facilitate judicial review of the permitting decision,” saying it wasn’t the “hard look” required under the Minnesota Administrative Procedure Act.
The Appeals Court also noted securities filings appearing to indicate that PolyMet was considering expanding the mine past air permit limitations.
MCPA and PolyMet appealed the decision, saying the Appeals Court ruled incorrectly.
“The permit further includes daily, weekly, and monthly monitoring and recordkeeping requirements to help ensure that PolyMet actually remains below the 250 tons per year threshold for regulated pollutants that is required to operate as a synthetic minor source,” the top court wrote.
The case will return to the Court of Appeals.
Although the court ruled against them previously, Executive Director of the Minnesota Center for Environmental Advocacy Kathryn Hoffman welcomed the ruling.
“Today’s ruling underscores that the entire process by which PolyMet obtained its permits in 2018 may have been deceptive and allows us to make this case to the Minnesota Court of Appeals,” Hoffman said in a statement. “PolyMet has engaged in a bait-and-switch scheme to avoid air pollution standards, and we are glad that the Supreme Court ruling allows us to make this case.”
Multiple required permits for the mine are still held up in court.
“The decision provides additional clarity that will enable the company to move closer to mining the metals that are needed for improvement to U.S. infrastructure projects and production of electric vehicles and renewable energy technologies,” Cherry said.
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