PolyMet Mine: Environmental Injustice

Environmental justice is the basic principle that tribes, low-income communities, and minority communities should not bear a disproportionate burden of the environmental harms resulting from a proposed government permit, approval, or action. Environmental justice is reflected in federal executive orders and federal case law:

  • Executive Order 12898 (February 11, 1994) directs each agency to “make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities” on minority populations, low-income populations and federally recognized Indian tribes. “Agencies are further directed to identify potential effects and mitigation measures in consultation with affected communities.”
  • Executive Order 13045 (Apr. 21, 1997) requires any environmental review to determine environmental justice harms, including “the potential for multiple exposures or cumulative exposure to human health or environmental hazards in the affected population, as well as historical patterns of exposure to environmental hazards.”
  • The federal government also has a fiduciary obligation to protect Tribal federally reserved rights under more than a century of case law.
“To be indigenous is to think about the future of the water, the trees, the animals. Everything is connected. And I think what mainstream America has done is de-spiritualized things, so much so that things have become objects, things to make money off of… There is no connection there, of life. This is why we do these things, for the protection of Mother Earth and for life. That’s why we’re here.”
– Ricky DeFoe, Ojibwe Pipe Carrier & WaterLegacy Board Member

The PolyMet sulfide mine would result in environmental injustice. Although agencies may have communicated with tribal staff and experts during environmental review and permitting, from WaterLegacy’s perspective, substantive consultation to resolve major tribal concerns about the PolyMet sulfide mine did not happen.

Left: 1854 Treaty Ceded Territories (Treaty Authority, Inter-Tribal Natural Resources). Right: St. Louis River watershed (American Rivers).

Disproportionate Impacts: Treaty Reserved Rights

The PolyMet sulfide mine pits, processing plant, waste disposal sites, and transportation and utility corridor would all be located in Ceded Territories in which the Ojibwe have retained rights to hunt, fish, and gather plants under the 1854 second Treaty of La Pointe. In this Treaty, the Ojibwe ceded most of the land on the northern and western shores of Lake Superior to the U.S. Government. The 1854 Treaty also established the Grand Portage and Fond du Lac Reservations of the Chippewa (Ojibwe).

As the Fond du Lac Band commented in opposing the PolyMet Land Exchange,

The rights to hunt, fish and gather over the territory ceded were essential terms of the Treaty . . . These rights do not consist merely of a right to take game, or fish or birds under the same conditions and to the same extent as other inhabitants of the territory . . . Further, the exercise of these rights requires access to natural resources that are not contaminated.

Read the Fond du Lac Band Objections to PolyMet Land Exchange (2016).

The U.S. Army Corps of Engineers (Army Corps) approved the PolyMet wetlands destruction permit even though it admitted that the mine would cause harm to exercise of treaty rights:

[T]he Mine Site is primarily characterized by undeveloped uplands and high quality wetlands. It is suited for hunting, fishing and gathering and other traditional uses by the Bands under the 1854 Treaty . . . The Project would generally have negative impacts on traditional uses by the Bands, scenic uses, recreational opportunities, habitat for fish and wildlife and wetlands that provide watershed functions.

Burden of Mercury Contamination of Fish

The PolyMet mine, processing plant, and waste rock piles would also be located in the headwaters of the St. Louis River, on which the Fond du Lac Reservation is located. The Fond du Lac Band has adopted – and the U.S. Environmental Protection Agency has approved – water quality standards for its Reservation waters, including a stringent standard to prevent mercury contamination of fish. The segment of the St. Louis River within the Fond du Lac reservation violates both Minnesota water quality standards and Fond du Lac water quality standards.

The Army Corps accepted PolyMet’s assumptions regarding its own pollution and discounted tribal analysis in approving the PolyMet Final EIS. But, the Army Corps admitted:

Operations could affect individuals who consume fish harvested from nearby waterbodies. Subsistence fishing and consumption is a common activity for Bands in the 1854 Ceded Territory. Members of the Grand Portage and Fond du Lac Bands are known to consume substantially more fish than the assumed statewide average. Increased mercury concentrations, and potential increases in mercury bioaccumulation in fish tissue could therefore constitute an [Environmental Justice] EJ impact for Band members and other subsistence consumers of fish.

The weight of scientific and public health evidence from tribal scientists, wetlands and mercury experts, and Minnesota medical professionals demonstrates that the PolyMet mine project would increase mercury contamination of fish, disproportionately and negatively affecting Ojibwe people who rely on fish for subsistence.

Cumulative Effects

The Fond du Lac, Grand Portage, and Bois Forte Bands requested a comprehensive Cumulative Effects Analysis of the harmful impacts on Tribes and Tribal Lands using current U.S. Environmental Protection Agency federal guidance.

Despite the Bands’ official role in environmental review as Co-operating Agencies, the state and federal Co-Lead Agencies did not resolve either in the Supplemental Draft EIS or in the Final EIS even the most fundamental concerns identified by the Fond du Lac and Grand Portage Bands and their scientific consultants years before. For many of the Tribal “Major Differences in Opinion,” the agencies merely said their “response remains unchanged.” For none of the Tribes’ major concerns did the FEIS provide the Tribes with an opportunity to make their own updated comments.

Read the Tribal Major Differences in Opinion Section of the Final EIS.

Cover image, Tribal Cooperating Agencies Cumulative Effects Analysis of PolyMet NorthMet mine project.

Wild Rice Waters

One of the most significant pollutants from the PolyMet mine, processing plant, and waste sites will be sulfate. The State of Minnesota and both the Fond du Lac Band and the Grand Portage Band of Lake Superior Chippewa have adopted water quality standards limiting sulfate to 10 parts per million (10 mg/L) to prevent degradation of wild rice.
Learn More: Wild Rice Sulfate Standard
The PolyMet Final environmental impact statement (EIS) didn’t actually say that any waters that would be affected by PolyMet sulfate pollution were protected under the 10 mg/L wild rice sulfate standard. The Final EIS did include a map showing “Draft MPCA Staff-Recommended Wild Rice Waters” downstream of the proposed PolyMet sulfide mine site and the plant site:

Draft MPCA Staff-Recommended Wild Rice Waters, PolyMet NorthMet mine project. Final EIS Figure 5.2.2-1.

However, both tribal scientists and WaterLegacy argued that the list of wild rice waters acknowledged by MPCA staff was far too narrow. In particular, maps developed by the Great Lakes Indian Fish and Wildlife Commission (GLIFWC) from PolyMet’s own consultant’s field studies showed wild rice waters father upstream in the Partridge River and closer to the proposed PolyMet mine pits.

Read GLIFWC’s Comment to the MPCA on Waters Used for the Production of Wild rice – Partridge and Embarrass Rivers and associated maps, Nov. 17, 2011.

Read WaterLegacy’s comment on designation of Wild Rice Waters downstream of PolyMet, Jan. 9, 2012.

Most troubling, neither the final NPDES/SDS water pollution permit, the fact sheet, nor the Findings of Fact, Conclusions and Order issued by the Minnesota Pollution Control Agency on December 20, 2018, identify any wild rice waters downstream of PolyMet pollution. In fact, the NPDES/SDS water pollution permit doesn’t even use the words “wild rice.”

Learn More: Water Pollution Permit