Tag Archives: industrialization

A Quick Update on MCRC v. EPA at the Sixth Circuit (With Several Additional Updates)

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EagleTrucksAAA

Ore trucks from Eagle Mine.

I’ve been doing my best to keep track of developments in Marquette County Road Commission v. EPA, the litigation over County Road 595 in Michigan’s Upper Peninsula. CR 595 was conceived and planned as a haul route from Eagle Mine to Humboldt Mill. From the outset, the project was a cause of public contention. As plans to cut through wilderness and destroy wetlands to build the road met with objections from the permitting authorities, the companies operating Eagle Mine — first Rio Tinto, then Lundin Mining — stayed on the sidelines, or worked quietly behind the scenes, leaving the people of Marquette County to slug it out with the federal government, and with each other.

The latest entry in the CR 595 legal saga looks like a win for the EPA, or at least a point in its favor. Last week, on Thursday, March 1, Ellen Durkee, the DOJ attorney representing the EPA, submitted a one paragraph letter to the U.S. Court of Appeals for the Sixth Circuit about a Ninth Circuit case called Southern California Alliance of Publicly Owned Treatment Works v. EPA. This is another piece of litigation over Section 402 of the Clean Water Act.

The plaintiff in this case was making an argument similar to that made by Mark Miller, the Pacific Legal Foundation attorney representing the Marquette County Road Commission before the Sixth Circuit: that EPA objections were tantamount to a permit denial (or what Miller insisted on calling a “veto”). If we follow Miller’s argument, the Marquette County Road Commission would have had no recourse after the EPA weighed in on its plans. In administrative legal parlance, the EPA’s objections to the Road Commission’s permit application would constitute “final agency action,” and could therefore come up for review by the court.

But in Southern California Alliance, writes Durkee, “the Ninth Circuit explained that under the statutory scheme, EPA objections are not functionally similar to a permit denial and that a challenge to EPA objections is premature.” That decision, made back in April of 2017, would seem to lend more support to the federal government’s position, that EPA objections merely constitute an “interlocutory step.” There is nothing final about them at all. So when it came to the permit application for CR 595, the Michigan DEQ still had three options: grant, deny, or do nothing. This was a point Judge White highlighted when she questioned Miller about the word “veto” during oral argument before the Sixth Circuit.

There was a new development in the Ninth Circuit case just last month, which is what prompted Durkee’s letter to the Sixth Circuit. On February 20th, the Supreme Court declined a petition to review the Ninth Circuit decision in Southern California Alliance. This means the Ninth Circuit’s ruling stands, and it might help bolster the EPA’s argument in the Sixth Circuit. It also suggests that the Supreme Court would probably not be favorably disposed toward a new petition for review on a point of administrative law it has just left up to a lower court. Miller, who has vowed publicly to take this case to the Supreme Court if the Road Commission does not prevail at the Sixth Circuit, might have to check his ambition.

Update: A Decision. On March 20th, 2018, the Sixth Circuit agreed with and affirmed the district court’s decision to dismiss the Road Commission’s complaint. Miller’s argument that EPA objections were tantamount to a “veto” and constituted final agency action failed to win over the three judge panel. “Though the Road Commission characterizes EPA’s objections as a ‘veto,’ the facts show that EPA’s objections did not end the Road Commission’s pursuit of a Section 404 permit. To the contrary, when EPA lodged objections, the permit review process continued precisely as directed by statute.” Given what I say here about Southern California Alliance, this looks like the end of the road.

Another Update. 9 April 2018. A story by Cecilia Brown in the Mining Journal suggests this case may take yet another turn. Dissatisfied with the March 20th decision by the three judge panel, the Road Commission is now asking for an en banc hearing at the Sixth Circuit. And if that doesn’t work out, they have “authorized” the Pacific Legal Foundation to seek review at the Supreme Court. For reasons I suggest above, I think it’s unlikely the Supreme Court will grant certiorari (or review the case). So far as I can tell from the docket, the Road Commission had not yet filed a petition with the Sixth Circuit requesting en banc review.

Yet Another Update. On May 2nd, Michael J. Patwell of Clark Hill , PLC and Mark Miller of the Pacific Legal Foundation filed a petition for an en banc hearing at the Sixth Circuit. This would bring the Road Commission’s case against the EPA before all the judges in the Circuit, and ask them to revisit the March 20th decision by the three judge panel.

The petition acknowledges that “this Court rarely rehears a case en banc” but then tries to argue that this case involves “an exceptionally important question of federal jurisdiction.” Oddly enough, the petition does not back down from the argument that EPA objections to the Road Commission’s permit “crystalize into what amounts to a veto” — an argument the Sixth Circuit panel met with skepticism at the hearing, then explicitly rejected in its opinion. So an en banc hearing at the Sixth Circuit would seem unlikely.

Petition for En Banc Hearing Denied, 29 May 2018. Today, Beverly L. Harris, the En Banc Coordinator for the Sixth Circuit, notified Mark Miller of the Pacific Legal Foundation that his petition for an en banc hearing has been denied. This comes as no surprise. The original three-judge panel found no fault with their decision, observing that “the issues raised in the petition were fully considered upon the original submission and decision of the case. The petition then was circulated to the full court. No judge has requested a vote on the suggestion for rehearing en banc.” As I noted back on April 9th, there are reports that the Marquette County Road Commission has authorized Miller to pursue this matter to the Supreme Court. After not a single judge took Miller up on the en banc review, it seems unlikely that the nation’s highest court would find anything irregular or meriting review here.

Mandate issued. On Thursday, 7 June 2018, the Sixth Circuit issued a mandate in MCRC v. EPA. This suggests, among other things, that Pacific Legal Foundation’s Mark Miller did not seek a stay of mandate — which he might have done were he ready to petition the Supreme Court.

Laudato Si’ on Mining

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The views of mining we find in the new papal encyclical Laudato Si’ clearly reflect the Latin American experience — centuries of plunder and absconded wealth, industrial development and economic underdevelopment, violence and ruin, degradation of the land and destruction of communities where mining is done. But in its careful attention to issues of water, water access, and the condition of the world’s poor, the encyclical raises serious questions about mining and the ethics of mining everywhere in the world.

Laudato Si’ explicitly addresses mining in three places, raising the very same issues that I’ve been writing about here, in connection with the new mining around Lake Superior. So I thought I would set out these passages for consideration now, with the intention of returning to them after I have had a chance to read the encyclical more carefully.

The first explicit mention of mining in Laudato Si’ comes at 29, which deals with the “serious problem” of “the quality of water available to the poor.”

Underground water sources in many places are threatened by the pollution produced in certain mining, farming and industrial activities, especially in countries lacking adequate regulation or controls. It is not only a question of industrial waste. Detergents and chemical products, commonly used in many places of the world, continue to pour into our rivers, lakes and seas.

At 51, one of the most powerful passages in the entire encyclical looks at the role of mining in creating an “ecological debt” of the global north to the global south, where raw materials are taken from the land for markets that serve the wealthy, industrialized north:

Inequity affects not only individuals but entire countries; it compels us to consider an ethics of international relations. A true “ecological debt” exists, particularly between the global north and south, connected to commercial imbalances with effects on the environment, and the disproportionate use of natural resources by certain countries over long periods of time. The export of raw materials to satisfy markets in the industrialized north has caused harm locally, as for example in mercury pollution in gold mining or sulphur dioxide pollution in copper mining.

Quoting a 2009 Christmas Message from the Bishops of Patagonia-Comahue Region of Argentina, Laudato Si’ goes on to explain that the industrialized world has incurred this debt because mining and other companies

operate in less developed countries in ways they could never do at home, in the countries in which they raise their capital: “We note that often the businesses which operate this way are multinationals. They do here what they would never do in developed countries or the so-called first world. Generally, after ceasing their activity and withdrawing, they leave behind great human and environmental liabilities such as unemployment, abandoned towns, the depletion of natural reserves, deforestation, the impoverishment of agriculture and local stock breeding, open pits, riven hills, polluted rivers and a handful of social works which are no longer sustainable.”

Finally, at 146, the encyclical addresses the way mining projects degrade and destroy land that indigenous communities regard as “sacred space,” often displacing them and threatening their very survival:

it is essential to show special care for indigenous communities and their cultural traditions. They are not merely one minority among others, but should be the principal dialogue partners, especially when large projects affecting their land are proposed. For them, land is not a commodity but rather a gift from God and from their ancestors who rest there, a sacred space with which they need to interact if they are to maintain their identity and values. When they remain on their land, they themselves care for it best. Nevertheless, in various parts of the world, pressure is being put on them to abandon their homelands to make room for agricultural or mining projects which are undertaken without regard for the degradation of nature and culture.

A Response from Maidlow’s Office

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Karen Maidlow’s office responded this morning with what appears to be a form letter regarding the proposed lease of a parcel next to the Yellow Dog River for mineral exploration by Lundin Mining.

The letter I sent last week urged Maidlow to look into Fisheries’ sudden — and perplexing — reversal of Kelley Smith’s 2003 “non-development” classification of the parcel.

In 2003, Smith deliberately reversed a 2002 “development” recommendation by Fisheries field staff. Why? Madison of Fisheries said he must have done it “for some reason” and Stampfly of Forestry was “at a loss” to account for it. Maidlow realizes she can’t ignore Smith, so she puts him in his place: “Mr. Smith was not part of the review process, only the approval process”; the former Fisheries Chief was reversed “on the basis of the most recent field review.” The field wins out over the office. The bureaucracy repudiates the bureaucrat. Fisheries’ recent reversal of Smith will likely be upheld.

Here is the salient paragraph:

On November 21, 2002, field staff reviewed the parcel under consideration here for a direct metallic mineral lease request from Prime Meridian Resources, Inc. (Prime). Field staff’s recommended parcel classification was development. Although the parcel did not contain water or aquatic resources, its classification was changed to nondevelopment on August 21, 2003 at the request of Mr. Kelly Smith, former DNR Fisheries Division Chief, as a condition of lease approval. Please note that Mr. Smith was not part of the review process, only the approval process. On the basis of the most recent field review, the proposed classification for this parcel is Leasable Development with Restriction. This means that the sub-surface minerals can be mined, subject to other regulatory review, and any proposed development on the surface would face further review by DNR staff before being permitted.

I’m afraid this already sounds like a done deal, even though nobody at DNR seems to know — or is willing to discuss — why Smith wanted to protect Parcel NE1/4 SE1/4, Section 13, T50N, R29W on the Yellow Dog Plains from industrial development.

The Times Correction of Jim Harrison’s “My Upper Peninsula” Falls Short In Three Ways

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The Travel section of the November 29th edition of the New York Times featured an article by Jim Harrison about traveling Michigan’s Upper Peninsula called “My Upper Peninsula.” It turns out Harrison’s Upper Peninsula is a place more fondly remembered than accurately observed, and the Times has had to make a number of corrections to his piece.

Probably the most egregious error in the original piece comes just a few paragraphs in, where Harrison explains to prospective travelers to the UP that “you can drink the water directly from Lake Superior,” as he himself used to do on his “long beach walks.” The water of Lake Superior is clean, he wrote in that first version, because “there is little or no industry, and all of the mines are closed.”

I was probably not the only person to send a letter to the editors reminding them that some UP mines are still open and that the Times itself had published a report, in May of 2012, on the new mining boom in the Upper Peninsula. My letter went on to say that the new sulfide mining (the mining of nickel and copper) along with new gold and uranium mining projects in the UP — and all around Lake Superior — pose a very serious risk to the big freshwater lake.

Just one project, the Polymet mine near Hoyt Lakes, Minnesota, will require water pollution treatment for a minimum of 500 years.

Last week, the Times published this correction:

Correction: December 4, 2013
An earlier version of this article misstated the state of mining in the Upper Peninsula; there are indeed some mines operating in the area — it is not true that all the mines are closed.

The passage about long beach walks now reads:

While camping I would study maps to try to figure out where I was other than within a cloud of mosquitoes and black flies, that irritating species that depends on clean water, of which there is a great deal in the U.P. There is little or no industry; therefore you could drink the water directly from Lake Superior — at least I always did on my long beach walks.

This new version tries to skirt the issue by consigning it to the past. Where Harrison originally wrote “you can drink,” now we are told “you could drink” the water. There is still “a great deal” of clean water in the UP, but this version takes refuge in “at least I always did,” to qualify the drinking. It could all have been a mistake.

But this correction doesn’t do the trick, for at least three reasons.

First, it doesn’t even come close to capturing what’s really going on these days. We still have no no reference to the Times original report on the boom. “It is not true that all the mines are closed” is a far cry from “many new mines are opening, and there is a mining and leasing boom” – which is a lot closer to the what the Times reported in 2012 and a lot closer to the facts: just look at the map of Lake Superior Mines, Mineral Exploration and Mineral Leasing published by the Great Lakes Indian Fish and Wildlife Commission. The problem here is only compounded by a couple of sentences near the end of the Harrison piece, which the editors let stand: “It’s not easy to cheerlead for the Upper Peninsula now after the extractive logging and mining. That bleakness is now mostly overgrown by forests except for a few slag piles.” Overgrown? Simply put, the bleakness that Harrison buries in the past is coming back to the UP.

Second – and this is a curious oversight for the Travel section – the new mining is going to endanger, or at least dramatically change, UP tourism, which is in large part about unimpeded access to wilderness areas and especially the freshwater wilderness of Lake Superior. Though tourism has been a growing sector of the UP economy, on its own it’s hardly enough to sustain the region (or any region for that matter). Mining proponents are usually quick to point this out. Most are very careful to say that they “don’t go around tearing down the tourism industry,” as one UP labor leader put it to me. Some are openly scornful of the contribution tourism makes to the regional economy. All acknowledge, as Harrison himself acknowledges, a tension between extractive industry and tourism; and doesn’t that tension belong at the center of any article about traveling to the UP?

Third, the corrected paragraph now makes very little sense. The editors have chosen to omit Harrison’s earlier statements about the disappearance of mining and recognize, in their correction, “some mines operating” in the Upper Peninsula. The paragraph about long beach walks simply states that “there is little or no industry” in the UP. I am not sure what this is supposed to mean: I guess “some” is supposed to be the equivalent of “little” or “none,” or mining doesn’t count as an industry. Be that as it may, the larger omission here has to do with the industrialization the new mining has already brought – the drilling, clear cutting, haul roads, and mine construction already underway are just the start — and how that will add to mounting industrial pressures on the lake: for example, the plan put forward by Enbridge to build a network of oil pipelines carrying diluted bitumen across the Great Lakes region, and to transport crude oil by barge across Lake Superior.

I realize, of course, that none of these observations are likely to find a place in the Travel section. Readers go there to encounter a world where nature is picturesque, and history and culture are placed on quaint and colorful exhibition. Advertisers count on it. The Travel section presents an exotic world, in the most literal sense, a world outside ordinary lived experience, fully exteriorized, a fantasy of escape. I suppose readers should look elsewhere in the paper of record to correct that impression, and to see the world as it really is.

Time Out of Mind

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I leave tomorrow for Lake Superior. On Thursday the 24th, Ken and I are going to show our film at Michigan Tech, where there’s a conference called Writing Across the Peninsula, and then, on Saturday the 26th, at the DeVos Art Museum in Marquette. I’m going up a little early to do some exploring, traveling north along the western shore of the lake to Palisade Head and then inland (west), through Finland and into the area around Ely, Babbitt and Hoyt Lakes, Minnesota. That’s where Polymet Mining has proposed a huge open pit sulfide mine. It will be my first visit and maybe one of the few chances I get to see the area before the mining begins. After that, it’s never going to be the same. Or at least not in my lifetime — or in the lifetime of anyone alive today.

Polymet recently disclosed in a Preliminary Supplemental Draft Environmental Impact Statement that water runoff from its mine will have to be treated for the next five hundred years — “a minimum of 500 years,” just to meet water quality regulations. The proposal in its current form clearly violates Minnesota Rule 6132.3200, which requires that “the mining area” be “maintenance free” upon closure; but Polymet and its legions of apologists have already found some wiggle room here, arguing that state law allows for “perpetual treatment” as long as enough money is set aside and as long as the company can prove that it’s meeting federal and state water standards. For Polymet, it seems, this is just the start of a negotiation.

The Mining Examiner quotes Frank Ongaro, Executive Director of Mining Minnesota: “There’s no doubt it can be done, that it’s allowed. The concept is sound; the details have to be worked out by the experts.” I honestly don’t know how anyone can say things like this with a straight face. Five-hundred years: the experts just need to work things out. No doubt about it.

When I first heard about the five-hundred year disclosure, I tried to think of a place where mining was done five-hundred years ago: the best I came up with was Cerro Rico in Potosi, Bolivia, where conquistadores set up silver-mining operations in the sixteenth-century. Potosi is now considered one of the most polluted places on earth. Of course, the Spanish crown did not set out the sorts of guarantees that Polymet is willing to set out; but apparently the mining company shares the crown’s illusion that its empire will last forever. Or at least they would like us to think so: they would like us to set aside our doubts and entertain the fantastic idea that they will provide water-treatment facilities for the maintenance of their copper mine for the next five-hundred years.

Mind you, the country’s only been in existence for 237 years, and Minnesota was only admitted to the union in 1858 — 155 years ago. The EPA only started operations in 1970; its workers only just got back on the job yesterday, after being furloughed during the shutdown. Why are we being asked to believe in the perpetuity or even the resilience of the EPA, the Minnesota DNR, or any government institution or form of government? Who can say what’s going to happen fifty years from now, let alone five hundred? Will there be a Minnesota DNR or an EPA in 2063? Will there be a Polymet? Minnesota? How about 2100? 2413? Insofar as history is about holding people to account, this is nothing more than historical fantasy: there’s no guarantee or even promise of accountability when you are talking about five centuries. As Steve Timmer would have it, nobody is going to be around to keep Polymet’s grave clean.

Time out of mind is the phrase this whole proposal conjures for me. The expression comes from English law. “Time out of mind” or “time immemorial” is a time before anyone can remember: a property or holding, a way of passage or a benefit has been enjoyed so long that those who claim it no longer have to prove ownership or their right to it; nobody can remember a time when it wasn’t so. In this case we are being asked to project that far into the future — way past the horizon of what we ordinarily consider the future, way beyond the time anyone can foresee.

Projecting that far into the future, time out of mind, is also a distorting lens. It’s easy when looking that far ahead to overlook what we know will really happen to the area in the near term, just in the course of constructing and operating an open-pit sulfide mine. Mine pollution that lasts for five-hundred years is a huge and terrifying prospect, no doubt, but that dread prospect might also have the weird effect of eclipsing (or normalizing) the more immediate environmental and social consequences of mining and the industrialization mining brings. Water Legacy estimates that the Polymet project will take 6,600 acres of forests out of public ownership, destroy or impair at least 1,500 acres of wetlands and result in 168,000,000 tons of permanent waste rock heaps and 228,000,000 tons of tailings waste. Add to this the haul roads, the mill operations, air and noise pollution, the effects of clear-cutting and deforestation, shifts in population, economic distortion, and so on.

It’s important to pull back, change the lens, and see clearly what’s going to happen, what’s already happening, to the waters and the wilderness areas, the Lake and all life around it, within our lifetime, and what effect our actions now will have for generations to come.

Walleye and the End of the Known World

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Since the 1970s, Lake Superior temperatures have risen an average of five degrees Fahrenheit and ice cover has reduced by fifty percent. This makes the lake less hospitable to the fat siscowet or lake trout that favors its cold depths and more susceptible to invasive predators like the lamprey.

Walleye can now live in more areas of the lake than ever before. The Keweenaw Bay Indian Community, who run commercial fishing operations on Superior, have been raising walleye at their hatcheries since 2005, according to an article that ran last week in Scientific American.

Walleye

A canny adaptation, but it’s clear from the same article that continuing change will require something even greater — a whole new orientation.

“With the changes in temperatures,” the article says at its most thoughtful moment, “the intimate knowledge of the lake that tribes and other anglers have cultivated over the years no longer jibes with reality.” Evelyn Ravindrian, a KBIC natural resource specialist, puts it this way: “people used to know, ‘Well, whitefish will be here this time of day, this time of year.’ Now they have to look around.” This is the bit that stuck with me.

The lake that fishermen came to know intimately is vanishing. It is undeniably a loss, and I found myself wishing the article had more to say about it: the end of a long intimacy, a bereavement, a disorienting absence — the kind of thing one feels after divorce, death or displacement. The end of the known world. I suppose an article written along those lines wouldn’t have had much chance of making it into the pages of Scientific American; but it would have gotten much closer to the heart of the matter.

As the new environmental reality takes hold, a social and cultural reality slips away: all the things “people used to know” about the lake, the seasonal and circadian knowledge that they cultivated and shared and that bound them together, as a people, or simply as Lake Superior fishermen.

They probably took most of those things for granted: that’s the nature of cultural habits, local knowledge, familiar ties — all the things that make up our sense of place. We know where we are without even trying. Now people will have to “look around,” as Evelyn Ravindrian says. They’re in a new and unfamiliar place, even though they have lived around Lake Superior and fished its waters for as long as anyone can remember.

The CEO and the Social Compact: Conibear Comes to Michigan

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I’ve been puzzling over the few public comments Lundin Mining CEO Paul Conibear has made regarding the announcement that his company plans to acquire the Kennecott Eagle Mine from Rio Tinto. Industry analysts studying these same tea leaves at the end of last week seem to have judged the Eagle sale to be auspicious. But I am looking for other signs — evidence of Lundin’s disposition toward the communities around the Eagle Mine and some indication of how Lundin plans to approach and address the social and environmental challenges of the Eagle Mine project.

There are suggestions in Conibear’s resume of some interest in local and global development issues and an appreciation for the environmental and social facets of large scale mining projects. An engineer by training, Conibear made his way as an operations man, parlaying his experience in Latin America, Europe and, above all, at the Tenke Fungurume mine in the African Congo into a leadership position — first at Tenke Mining, where he served as CEO before its merger with Lundin, and then, when Phil Wright resigned in 2011, as CEO of Lundin Mining. During his time in Africa, according to his official corporate biography, Conibear was “active in advancing the group’s corporate social responsibility initiatives”; and he “is one of founding directors of the Lundin for Africa Foundation, a charitable entity established to support sustainable development across Africa”. Here, then, is a CEO with CSR credentials.

It’s too early to tell whether this will matter when it comes to Lundin’s work in the UP. Reports that the company will uphold Rio Tinto’s commitments to the communities around Eagle Mine — and keep the current Kennecott team in place — are still short on specifics. That will probably be the case at least until the transfer of the mining permit is complete and Lundin has had a chance to figure out firsthand what’s working at Eagle and what isn’t. Conibear’s affiliation with Lundin for Africa, and that organization’s focus on social enterprise, may not translate to efforts on the ground in Michigan, for all sorts of reasons; he himself has said nothing so far about how the company will continue, depart from, or improve upon what Rio Tinto has already done. In a press release Lundin issued last week, the CEO is quoted as saying only that the acquisition of the mine in Michigan’s Upper Peninsula

fits ideally within Lundin Mining’s asset base and is the result of the disciplined approach we have been focused on for some time to acquire high quality, advanced stage assets in low risk, mining oriented jurisdictions. The Eagle Mine represents a very unique opportunity to acquire a high-grade project which is under construction and expected to begin generating significant levels of metal production and cash flow prior to the end of next year. Northern Michigan has an outstanding iron ore, gold and base metals mining history and consequently excellent regional power, road and rail infrastructure, with extensive mining expertise within local communities to support and staff Eagle Mine.

I was struck by a couple of things here, but most of all by the invocation of northern Michigan “history” in the last sentence. What makes the history of the Upper Peninsula so “outstanding,” in Conibear’s view? Nothing like what drew Richard White to his classic study of the French and the Algonquins in the pays d’en haut. Not the brutal strikes and hard times Arthur Thurner wrote about in Rebels on the Range; not the complex system of social patronage that obtained between immigrant hard-rock miners and the tight-fisted, iron-willed mining captains, described by historians like Larry Lankton. Not even the attitudes toward history that impressed me most in the interviews I did in connection with 1913 Massacre — the deep and heartfelt emotion many people in the area invest in the past, and the pride they feel in what their ancestors accomplished and endured; the way that shared stories have both concealed past trauma and allowed the region to heal; a resilience that has allowed communities on the Keweenaw to weather boom and bust.

It may not seem reasonable to expect much feeling for the history of the UP in Conibear’s remarks. He’s got a mining company to run and investors and analysts to impress. But it’s worth noting that a more considered view of UP history (and a look at the environmental damage caused by the last round of mining) would not necessarily lead one to characterize a mining venture in the Upper Peninsula as “low risk.” For Conibear, UP history seems to matter to the extent it can be exploited for business advantage. The past has value in the present as a source of “infrastructure” — a reliable power grid, rail and roads — and “expertise.” Widen the lens a bit, however, and that same history becomes a source of uncertainty and obligation as well as strength.

Take roads, for instance. It’s odd that Conibear would single out roads as one of the things that attracted Lundin to northern Michigan and the Eagle Mine. A proposed $80 million project to build a haul road from the Eagle Mine to the Humboldt Mill ended in failure earlier this year, after the Michigan Department of Environmental Quality denied the permit for County Road 595. It was a big setback for Rio Tinto, which had fought for the road for five years. Defeated, the company announced that it would spend $44 million to upgrade existing roads instead, but that plan remains controversial — and now that project and the cost as well as the controversy it entails are Lundin’s to manage.

There’s another, more general observation to be made here as well. History doesn’t just throw all those things — power, roads, expertise — into the Rio Tinto deal. If history, or the experience of the past 150 years of mining, works in favor of companies operating in the UP today, it also marks a good place to start enumerating the responsibilities mining companies have to society. This is a point about the relationship of business to society that Elizabeth Warren made in the run up to last year’s presidential election, and which snowballed into a ridiculous controversy over Obama’s “You Didn’t Build That” remark. It’s worth recalling Warren’s argument in this context. A skilled and educated workforce, reliable infrastructure, the protection of the law, even the free association to do business with whom and where you like, Warren said, are part of an “underlying social contract.” Companies have to honor that contract and “pay it forward” if they hope to continue to benefit from public goods; and society has a responsibility to push hard on companies until they do.

In Michigan, of course, Governor Rick Snyder and his cronies did all they could during last year’s lame duck session to weaken the compact between business and society and to relieve mining companies of the obligation to pay forward anything at all. A bill sponsored by the UP’s outgoing Republican representative Matt Hukki set out to “ease upfront costs for mines” and make the taxes on mineral extraction in Michigan “more simple, fair and efficient,” replacing property tax, corporate income tax, sales tax and use tax with a single “severance tax” of 2.75 percent on the gross value of minerals extracted — once the mine went into production. That works out very nicely for Rio Tinto, which never took Eagle into production; and it would be worth finding out whether the company is now entitled to a tax credit on property taxes paid before the passage of HBs 6007-12. That retroactive credit — the opposite of paying it forward — is one provision of Hukki’s bill.

Tax relief and regulatory easing are no doubt some of the things Conibear had in mind when he described the Upper Peninsula as a “mining-oriented jurisdiction.” It’s a piece of industry jargon that is used to talk about whether conditions are favorable or unfavorable — a way of assessing risk. Among US states, Michigan has never ranked very high in the annual survey of mining jurisdictions by the Fraser Institute [pdf]; but generally, writes Aaron Mintzes, “jurisdictions within the United States rank very well in large measure because we have stable and transparent democratic institutions, courts that enforce contracts and resolve disputes, and generous mining policies (like the 1872 Mining Law)”. This is another unappreciated provision of the social contract: strong public institutions and the rule of law reduce the risks companies take as much as if not more than mine-friendly policies.

You would think that companies, in turn, would be obliged to do everything they can to reduce the risks they pass on to society. That has rarely been the case, and it has not been the case when it comes to the Eagle Mine. Rio Tinto and now Conibear and Lundin are requiring communities around the mine and all around Lake Superior to assume an enormous risk. It goes beyond legitimate fears of environmental damage due to subsidence or acid mine drainage. When Eagle goes into production in 2014, it will signal the start of a new mining boom in the Lake Superior region. Over the next several years, one of the world’s largest mining operations will be staged around one of the world’s largest freshwater lakes. Just look at the map of mines, mineral exploration and mineral leases published by the Great Lakes Indian Fish and Wildlife Commission. It is difficult even to imagine the environmental hazards and the social costs that the mining boom and the inevitable industrialization of Lake Superior will entail. I am still wondering whether Mr. Conibear appreciates that.