Tag Archives: Kennecott Eagle Mine

The Political Project of MCRC v. EPA, Revisited

Judge Robert Holmes Bell dismissed the Marquette County Road Commission’s case against the EPA back in May, and last week the Road Commission’s attorneys at Clark Hill PLC filed a motion to alter and amend that judgment. They complain that the Court’s dismissal for failure to state a claim is not only mistaken on points of law but, more dramatically, it allows the “EPA and the Corps to wage a war of attrition on local governments seeking to protect the health and welfare of their people.”

I was struck by this inflammatory piece of political rhetoric about federal overreach for a couple of reasons. First, because it’s just the sort of hyperbolical language Michigan State Senator Tom Casperson and StandUP, the 501c4 dark-money organization funding the Road Commission lawsuit, have used to frame the case for County Road 595 and advance what, in a series of posts (1, 2, 3, 4) last summer, I called the political project of MCRC v. EPA. Second, because the motion here tacitly admits that mining activity on the Yellow Dog Plains has put “the health and welfare” of people in Marquette County at risk. Rio Tinto and then Lundin Mining proceeded with their plans to mine copper and nickel at Eagle Mine and truck it to Humboldt Mill without a clear haul route. They not only went ahead; they were permitted by the state to do so. The risk was transferred to the public.

This is a familiar pattern, but the story it tells is not about federal overreach or intrusive oversight. Quite the opposite: it’s a story about mining companies rushing projects into production without due consideration for the communities in which they are operating, regulatory capture or lax oversight and enforcement, and elected officials who all-too-easily and all-too-conveniently forget where their real duties lie.

The June 13th motion doesn’t often have recourse to this kind of language. For the most part, the motion deals with fine points of administrative law, citing a few cases that it claims the court misread or misapplied. Probably the most important of these is the Supreme Court’s discussion of the Administrative Procedure Act in a May 2016 opinion, United States Army Corps of Engineers v. Hawkes Co.. (Miriam Seifter explains Hawkes over at ScotusBlog. Even with her very clear analysis in hand I can only hope to make a layman’s hash of things.)

In Hawkes, a company that mines peat for golf-putting greens — a process that pollutes and destroys wetlands — sought an appeal of “jurisdictional determinations” by the Army Corps of Engineers that wetlands on their property were subject to the Clean Water Act.

The “‘troubling questions’ the Clean Water Act raises about the government’s authority to limit private property rights” came up for some brief discussion in Hawkes, notes Seifter, but that was not the main focus of the Supreme Court opinion. The case instead revolved around the question whether jurisdictional determinations are “final,” which in this context means they constitute an action “by which rights or obligations have been determined, or from which legal consequences will flow.”

The Army Corps in Hawkes maintained that appeals of the Corps’ jurisdictional determinations should not be allowed, because the determinations of the Corps are still subject to review and are not “final” or binding. The court found unanimously in favor of the peat-miners, saying that determinations by the Corps were final — they would put legal constraints on the peat-miners, who would have to stop polluting or face penalties — and therefore could be reviewed in court.

In MCRC v. EPA, the Road Commission now seeks a decision along similar lines. “The Court erred,” the motion complains, “by holding that EPA’s veto was not ‘final’ because Plaintiff could submit a new application to the Corps.”

In other words, the court held that the EPA’s objections to County Road 595 weren’t the last word: they didn’t constitute “final agency action” and did not entail legal consequences or impose obligations the Road Commission didn’t already have. The Road Commission can even now take EPA’s opposition to the road under advisement, go back to the Corps and seek a new permit. They can continue to work with the EPA, whose objections to the road are “tentative and interlocutory”: there is still room for conversation.

The attorneys for the Road Commission don’t deny that the Road Commission could have gone back to the Army Corps of Engineers; but they say that it would have been time consuming, burdensome and ultimately futile, as the Corps had joined the EPA in its objections to the road, and the EPA’s objections had the effect of a veto.

This brings us back to the arguments advanced in the original complaint. The EPA didn’t just object to the Road Commission’s proposal; they unfairly vetoed the new road, in a “biased and predetermined ‘Final Decision’.” The Final Decision, according to the motion, took the form of a December 4, 2012 objection letter from the EPA to the Marquette County Road Commission, to which the Road Commission replied on December 27th. They did not receive a reply, and the EPA’s failure to reply was tantamount to a “refusal.”

The EPA’s refusal (or failure) to reply to the Road Commission’s December 27th letter indicated that their objections had “crystalize[d] into a veto,” according to the motion. “Unequivocal and definitive,” a veto is a final agency action, “akin” to jurisdictional determinations made by the Corps. What legal consequences flowed from the veto? For starters, the EPA’s Final Decision divested the state, specifically the Michigan Department of Environmental Quality, of any further authority in the matter.

While this is not a new position for the Road Commission, the way the motion lays it out is nonetheless clarifying. The discussion of Hawkes, especially, brings into focus the question before the court — a question of administrative law concerning the “finality” of the EPA’s objections to CR 595. Of course that question entails others: whether the EPA’s failure to reply to the Road Commission’s letter of December 27th amounts to a refusal of the Road Commission, whether that refusal, in turn, crystalized their objections into a veto, and whether EPA vetoes are really “akin” to jurisdictional determinations by the Corps.

Stronger accusations are only being held at bay here. For example, it would be difficult to read the EPA’s failure to reply to the Road Commission’s December 27th letter as a deliberate refusal to reply without accepting the original complaint’s charges of bias and allegations of conspiracy at the EPA, or indulging its witch hunt for “anti-mining” attitudes and its demonizing of “activists.” But even if we are not willing to follow the plaintiff down that dark road, it would also be difficult, now, to overlook the serious dysfunction and administrative incompetence exposed by the Flint Water Crisis, which cost the head of EPA Region 5 her job, and which showed the world just how broken the system of environmental governance is in Michigan.

The Mining-Labor Juggernaut, A Day After the Election

Mother Jones ran an election-day piece about corporate campaign contributions yesterday, with a map designed to show “which companies dominate” the politics of each state.

There were a few surprises: I didn’t expect to see that “Finance” contributes the most to candidates in Maine, and “Tech” to candidates in Minnesota. On the other hand, the authors, Alex Park and Tasneem Raja, warn that their categories are pretty broad and loose: “‘Real Estate’ for instance, includes donations by individuals and groups connected to both construction and the sale of buildings”; and a category like “Health” might include donations by individual doctors and nurses as well as healthcare companies.

Breaking things down by states doesn’t make all that much sense either, as I learned when I looked at Michigan, to see if it’s possible to track down some of the money driving the politics of the mining boom in the Upper Peninsula.

Michigan is one of about half a dozen states in which “Real Estate” makes the most contributions to political campaigns; but this isn’t the case throughout the state.

Have a look at the Upper Peninsula on followthemoney.org, the site Park and Raja use to make their map. Political money comes mainly from big labor and “Energy and Natural Resources” along with Rick Snyder’s One Tough Nerd PAC and other Republican PACs.

Zoom in a little more. Over in Ironwood, where Orvana now has a permit for their Copperwood project, Energy and Natural Resources interests are among the biggest contributors; as I mentioned in a previous post, the district’s own outgoing Republican Matt Huuki paid big mining back when he brought a bill during the 2012 lame-duck session that relieved mining companies of up front costs and ensured they pay no taxes until they go into production. But in this part of the Western UP, contributions from labor are nearly twice those of the mining industry; and that is before you count contributions from the construction industry.

In Marquette, where I’ve been following the Eagle Mine project, you see contributions across the board in State elections from the pro-mining Michigan Petroleum Association and a group called the Michigan Laborers, an AFL-CIO affiliate. Labor and mining are right up there with big Republican donors like Randy Richardville (under the aegis of something called the Citizens Action Fund) and the Stamas Leadership Fund.

The snapshots this site and others like it afford are pieces of a larger mosaic, in which extractive industry and big labor now dominate the politics of the Upper Peninsula; and whereas they used to be on opposite sides of the fence, they are now working toward the same goals — in what is now a right to work state. I wonder how long before these strange bedfellows start kicking one another beneath the covers.

There are, at the same time, other forces at work in the politics of the UP, at least on a more local level. All four City Commission candidates in Marquette — Dave Campana, Mike Plourde, Sarah Reynolds, and Tony Tollefson — said that they want to see job growth in industries other than mining and they are all for promoting “economic sustainability” instead of riding the boom and bust cycle of mining. A candidate survey from the organization Save the Wild UP also shows all candidates saying they “[believe] that new mining developments near waterways threaten fish populations and recreational fishing” and they want to “[hold] companies financially accountable for their environmental degradation.”

Maybe that’s a start or at least a sign of intelligent life. Of course these are politicians, so I take their responses to this questionnaire with a grain of salt and I realize that they are only saying what they need to say, not necessarily what they believe. Now that Campana and Reynolds have won seats, will they have the courage, or at least the political cover, to take stands that might put them at odds with the UP’s mining-labor juggernaut? Or will big money just steamroll the entire UP? I wonder, too, if we will start to see more fractures in the politics of the region — between big mining and big labor, between local, state and industry actors over everything from trucking routes to hunting grounds and fishing spots, or between right-to-work Republicans and out-of-work locals, who probably cannot and should not count on a mining job or the economic revival big mining promises to bring.

An Updated Map of Lake Superior Mining

Basin_mines_3-15-13
The Great Lakes Indian Fish and Wildlife Commission has produced this updated map of Lake Superior mining. Since I’ve written about an earlier version of this map (here, but see also here and here and here) and I plan to write about Lake Superior mining moving forward, I thought it would be useful to share it.

This March 15, 2013 version of the map [pdf] includes more detail and definition as we see new projects come online and exploration and leasing continue apace.

Notice how much more detail we have in this version around Duluth and Hibbing, in the southwestern corner of Superior. Taconite and iron yield to copper and nickel as the trail of exploration moves north. On the south shore of Superior, in Michigan’s Upper Peninsula, the Kennecott Eagle Copper Mine on the Yellow Dog Plains, along with White Pine and Orvana Copperwood, are now properly identified.

Claims and leases have turned much of this area, from L’Anse Bay to Marquette and over to Deer Lake, pink. The new mining runs right up to the edge of the watershed area that stretches from the Carp River to St. Mary’s River.

The densest concentration of leasing and mining claims remains on the Canadian side, on the northwestern shore of Superior, from Thunder Bay toward Lake Nipigon. Gold and rare mineral exploration predominate.

“Areas of Concern” singled out by the Lake Superior Mining Committee in 2010 are unchanged, on both the Canadian and the U.S. sides of the lake; and yet we see mineral exploration and new mining claims right around these areas.

It’s tempting to look at what’s happening around Lake Superior right now and make alarming conjectures about what might happen, three or five or ten years down the road. Nobody knows how many full-blown big mining operations will develop from all this exploration and activity. But it’s clear from this map that new mining is already putting significant pressure on Lake Superior.