Tribes’, Activists’ Fight Against Proposed Minnesota Copper Mine Bolstered by Legal Victories

Recent court decisions call into question key permits for massive PolyMet project in Lake Superior watershed, recognize rights of Fond du Lac Band.

Lake Superior’s vast shimmering blue looks like an ocean, but this is freshwater — ten percent of our entire world’s fresh surface water, as a matter of fact. The port city of Duluth, Minnesota sits on its edge, at the western tip of the interconnected chain of Great Lakes. This will be an increasingly vital place, as climate change, drought, and water scarcity accelerate, and the need for freshwater access intensifies nationally and globally. Yet Minnesota has another legacy: the mining industry, which has long exploited iron reserves in its famed “Iron Range” that extends 175 miles around the north shore of Lake Superior, and has caused significant environmental pollution.

The NorthMet project, which is slated to occupy some 19,000 acres, would destroy more than 1,000 acres of wetland near the headwaters of the St. Louis River, the largest freshwater estuary in North America, and the largest tributary to Lake Superior. Photo of St Louis River by Sharon Mollerus

Approximately ninety miles upstream from Duluth, near the towns of Babbitt and Hoyt Lakes, a web of waterways weave their way through peat wetland. Endangered wolves and lynx roam this area, along with moose and deer. Abundant medicinal plants grow in this site, sacred to the Chippewa tribes, which are now part of the 1854 treaty land where the tribes have the right to hunt, fish, and harvest wild rice, maple syrup, and plant medicine. These are the headwaters of the St. Louis River, the largest freshwater estuary in North America, and the largest tributary to Lake Superior. Deep underground the wetlands here is a massive deposit of copper.

This is also the site of the proposed PolyMet Mining Corporation copper-sulfide mine, NorthMet, which would be the first mine to extract copper-nickel and other minerals from a large, untapped deposit in the area. The massive project, which is slated to occupy some 19,000 acres, would destroy more than 1,000 acres of wetland. This type of open-pit mine design has a 100 percent failure rate, and is particularly dangerous in a water-rich environment, according to research by the mining watchdog group Earthworks.

“We know that the waterways are connected,” says Chippewa elder Ricky DeFoe, “It’s like in the human body all the veins are connected, so it is with the waterways.” If NorthMet were to happen, activists fear it would pave the way for a 100-mile corridor of copper mines in Northern Minnesota, including the proposed Twin Metals project in the Boundary Waters. Tens of thousands of acres of mineral leases have been sold in the region. As the first proposed open-pit copper mine to make it through permitting in Minnesota, NorthMet may set legal precedent for future mine proposals nearby.

For 15 years, tribes, environmental groups, and citizens have been voicing concern about NorthMet, plans for which made it all the way through permitting in a process that activists say was mostly behind closed doors, without an unbiased decision maker looking at the evidence. According to environmental groups, the US Environmental Protection Agency (EPA) leadership under the Trump administration colluded with the Minnesota Pollution Control Agency to cover up EPA staff members’ voices of concern, and the agency blocked the Fond du Lac Band of Chippewa from having a voice by refusing multiple requests to investigate downstream effects.

This past spring and summer, however, a string of victories brought renewed hope to the groups working collaboratively to protect the Lake Superior watershed.

At the federal level, the Biden administration’s EPA determined that pollution from PolyMet “may affect” the Fond du Lac Band, which is the first time ever that a tribe has won the same legal consideration that is given to downstream states under the Clean Water Act. And at the state level, three key decisions mean PolyMet — which was originally given a “forever permit” with no specific end date — no longer has a permit to mine and that the project will have to undergo further review.

Deanna Erickson, advocate for the citizen group Duluth for Clean Water, says this moment is a chance to realize that “we don’t have to do this to ourselves.”

PolyMet, a Toronto-based company, is majority owned by Glencore, a Swiss mining conglomerate with an egregious track record of human and environmental rights abuses. It proposed the NorthMet project nearly two decades ago. The project comprises an open pit copper-nickel mine and an ore processing facility a few miles away. Toxic liquid waste from the ore processing, called tailings, is to be held in a pre-existing tailings dam belonging to an old taconite processing facility near Hoyt Lakes that PolyMet fully purchased in 2018 (Though PolyMet closed the deal on these assets in 2018, purchase agreements for the property were made in 2005-06). That dam is already over 60 years old and leaking, and is located in a water-rich environment that makes it particularly vulnerable to leakage and collapse. Tailings from the processing would contain arsenic, asbestos, cadmium, lead, and mercury, five out of the top ten 10 chemicals WHO list for public health concern.

Following a dam collapse in Brazil that killed hundreds of people in 2019, and the collapse at Mt. Polly that contaminated the Quesnel river in British Columbia in 2014, some countries are entirely banning this same upstream dam design, and decommissioning existing mines. As high-grade copper deposits have dwindled, companies are cutting corners to make a profit off low grade deposits, which leads to more tailings. In this case, the PolyMet dam would be 250 feet high on an unstable dam.

Mercury pollution too, is of particular concern for the downstream Fond du Lac Reservation, as well as the city of Duluth. Already one out of every ten babies living in the Lake Superior Basin have unsafe levels of mercury in their bodies largely due to pollution from iron mining. Mercury causes neurological damage and is particularly harmful for developing fetuses and babies. “This continued mining extraction industry always leaves people hurting. Historically it’s been indigenous communities,” DeFoe says. “Our concern is the potential for danger to the next generations. We’re looking out for not only our children, but the children of all peoples.”

The Fond du Lac Band initially got involved in voicing concerns in order to try to improve the PolyMet project so that it could meet state and tribal water quality standards. The Band was particularly concerned that the project would increase mercury and methylmercury bioaccumulation in the St. Louis River. It worked closely in a collaborative effort with the Bois Forte and Grand Portage bands and two intertribal agencies, which submitted their own independent data analyses, modeling, and study on the cumulative effects the project would have on treaty resources.

However, “political pressure to get that project approved through the entire review and permitting process really trumped the science and data and unbiased review,” says Nancy Schuldt, the Band’s water projects coordinator who has been working extensively on this since 2006. She says the Band’s input was relegated to footnotes and appendixes. Legal action was a last resort. “We didn’t spend years and years writing hundreds and thousands of pages of technical comments and citations just to be ignored.”

In 2019, asserting its rights as a “downstream state,” the Band filed a lawsuit against the US Army Corps of Engineers and the EPA over the issuance of a “404” dredging permit for the mine. And this past February, the US District court in Minnesota ruled that the EPA had failed not only to consider the impact of the mine’s water permits on the Band’s water but also to notify the Band under Section 401(a)(2) of the Clean Water Act. It said that the agency had “a legal duty to make a ‘may affect’ decision,” that is, make a decision acknowledging the NorthMet project may affect the water quality of downstream states.

In light of the ruling, in March this year, the Army Corps voluntarily suspended the 404 permit to PolyMet. And on June 4, the EPA determined, for the first time ever, that pollution resulting from a federal wetlands permit “may affect” a downstream tribe, and that the Clean Water Act Section 401(a)(2) allows not only downstream states but also authorized tribes to protect their water. This is a groundbreaking acknowledgment that the Fond du Lac Band, as a sovereign nation, has the right to object to a proposed permit by an upstream state if the project does not comply with the Band’s water quality standards.

Schultd says, “There is very little case law nor very many EPA precedent actions for notifying downstream states or authorized tribes that a federal action ... may affect the downstream entity’s water resources or exceed their water quality standards.”

The determination felt like a vindication to the tribes who have been fighting to be heard for so long. “That’s an argument we’ve been making for the last 15 years, during the whole environmental review process and permitting process,” Schuldt says.

Paula Maccabee, attorney for WaterLegacy, a grassroots group opposing the copper mine and a collaborator with the Fond du Lac Band, also homed in on the Band’s rights under the Clean Water Act. Initially, people thought the idea was absurd, Maccabee says, but the Band continued to raise their concerns in formal comments and in consultation with the lead agencies, eventually elevating those concerns to the headquarters of federal agencies involved.

Schuldt attributes this win to “a very dedicated group of tribal staff, tribal leadership, really good attorneys, and really strategic collaborations with some of the environmental groups.” The EPA also took it even further, and said PolyMet may affect Wisconsin’s water, which signifies that the Band’s analysis is strong.

Going forward, the Band is still in the process of refuting numerous other permits issued to PolyMet, and has seen victories on all of them.

On the state level, Water Legacy, the Fond du Lac Band, the Minnesota Center for Environmental Advocacy, and other groups have recently had three other key wins.

In April, the Minnesota Supreme Court ruled that the indefinite Permit to Mine — or “forever permit” — given to PolyMet by the state Department of Natural Resources (DNR) was not in compliance with state law. The court said that this primary permit that a company needs to build and operate a mine in the state must have a term limit and asked the DNR to set an appropriate end date for the project.

On the surface this may seem like a small issue, but Maccabee says it’s “very fundamental — how do you stop the pollution and restore the area to some semblance of a natural condition? The DNR is going to have to grapple with this.” PolyMet’s own modeling suggests 500 or more years of maintenance will be required to treat polluted water after the mine’s closure. A time limit on the permit means they’ll have to figure out how to close the tailings basin and restore the area.

The court also ordered the agency to reexamine the project’s waste management plan, specifically whether its tailings facility and bentonite clay mixture would be effective in preventing acid mine drainage. DNR will have to hold a contested case hearing before an administrative law judge on this issue.

PolyMet plans to use a bentonite liner, which is a layer of clay mixed with soil to seal the bottom of the tailings dam. This clay liner is supposed to prevent pollution from seeping through and causing acid mine drainage. “There’s absolutely no evidence in the record that this bentonite scheme would really work,” says JT Haines, northeastern Minnesota director of the Minnesota Center for Environmental Advocacy and cofounder of Duluth for Clean Water. “There’s not even a clear proposal for how it would be done.”

In July, a Minnesota state court ordered the Pollution Control Agency to investigate the project’s air emissions permit as well. Environmental groups say the permit is based on a plan for a much smaller mine than what PolyMet is actually intending. A report filed by PolyMet indicates that they are aiming to expand the mine to four times the size that the air permit allows. Haines says, “PolyMet pedaled two different versions of its proposal — one to Minnesota, and a much larger one to its investors.”

Many advocates are quick to point out that these recent wins are tied to just four among countless safety issues with the proposed mine, and that a contested case hearing should look at all of the big issues, not just the dam liner. And they say Minnesota Governor Tim Walz’s could make that happen He took office after the permits were given to PolyMet in 2018, and now with four major permits suspended, remanded, or reversed, Haines says “he has the authority to instruct the DNR to order a full and fair contested case hearing that includes all the issues under dispute.”

In the big picture of copper, the mining industry claims this resource is needed for the transition to green energy, however there are more sustainable ways to get copper. The mining industry itself accounts for 4 to 7 percent of total global greenhouse emissions. The NorthMet mine alone would be the carbon emissions equivalent of 100,000 new combustion cars on the road. Ethical recycling is another potential way forward. Copper is infinitely recyclable. “We could save up to 90 percent of the fossil fuel energy in addition to not having to pollute the water and destroy the wetlands and their carbon sequestration,” says Maccabee.

Currently 33 percent of the copper we use in the US comes from recycled and reclaimed sources, whereas in the EU it’s 60 percent. “If the US increased to 50 percent recycling,” Haines explains, “that would provide as much copper as 15 [NorthMets].” Even with green energy, copper consumption is actually down significantly from 20 years ago, whereas water is increasingly scarce. Climate refugees are already moving to Duluth for the water and protection from climate change. Water is finite, and critical to all of life. Any conversation about copper, Haines says, “also must include the value of water.”

Correction: The NorthMet processing facility would grind and precipitate the copper ore, not smelt it as mentioned in an earlier version of the article. The processed material would be shipped outside for smelting. This article has also been edited to clarify that though PolyMet closed the deal on processing facility and tailings dam in 2018, purchase agreements for those properties were made in 2005-06.

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