Tag Archives: Michigan

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.

A Postscript on the Political Project of MCRC v. EPA

A ProPublica investigation of dark money organizations lends context and additional color to some of what I had to say a a short while ago about the Marquette County Road Commission’s lawsuit against the EPA.

Sponsored by State Senator Tom Casperson, the Republican representing Michigan’s 38th district, the MCRC lawsuit is being funded by a non-profit organization called Stand UP. Stand UP is exactly the kind of dark money organization profiled by ProPublica: it’s a special kind of non-profit, a 501c4 “social welfare” organization that is not required by law to disclose the names of donors. It does not have to confine its fundraising and expenditures to the MCRC lawsuit or any other specific purpose. It is a trough of dark money that can serve any number of political efforts.

So, as I tried to suggest in a series of posts on the MCRC complaint (here, here, here and here), while the lawsuit is nominally over a haul road that will serve both mining and timber companies, it also appears to be part of a larger, coordinated effort to sideline federal regulators, stifle local environmental watchdogs, and arrogate the authority and power to direct economic development in the Upper Peninsula to a set of undisclosed actors and moneyed interests.

Now, as Robert Faturechi reports, with efforts in 38 states to make non-profit organizations like Stand UP more accountable and transparent gaining ground, powerful conservative groups are “coaching” allies on how to fight back against any new legislation requiring the disclosure of dark money sources. The tactics they recommend should sound familiar:

Get the debate to focus on an “average Joe,” not a wealthy person. Find examples of “inconsequential donation amounts.” Point out that naming donors would be a threat to “innocents,” including their children, families and co-workers.
And never call it dark money. “Private giving” sounds better.

They urge dark money groups to claim the victim’s mantle and to see conservatives as “a persecuted class,” according to one January 2016 memo Faturechi uncovered. It’s “all part of a plan to choke off our air supply of funding,” they warn.

The documents presented by Faturechi were distributed at a conference held in Grand Rapids by The State Policy Network. The Network “calls pro-regulation activists ‘enemies of debate,’” and generally takes the line that regulation quashes freedom and criminalizes belief — a refrain often heard from climate change denialists — and that transparency will only threaten privacy.

The State Policy Network brings together conservative and tea-party organizations from around the country dedicated to “advancing freedom and making a difference,” so it’s well positioned to coordinate local efforts like the MCRC lawsuit against the EPA with other state, regional and national causes. In Michigan, the Network’s member organization is the Mackinac Center for Public Policy. Just last week, they ran a widely shared update (303 “likes” and counting) on the MCRC lawsuit in which Casperson crows about the progress they’ve made in the discovery phase of the suit and wails about prejudicial treatment at the EPA.

Two Upcoming Events In Marquette, Michigan

SWUP2015Gala

On Saturday, December 5th, I’ll be at Save the Wild UP’s December Gala, where I’ve been invited to give the keynote.

Save the Wild UP is a great local grassroots organization dedicated to preserving and celebrating the nature and the culture of the Upper Peninsula. The people at Save the Wild UP (most of them are volunteers) do the work of educators, naturalists, social scientists, industry watchdogs and field guides all throughout the year, and I hear they throw a great party, too.

If you can’t make it to Steinhaus Market on the 5th, and even if you live far from Marquette or have never been to the Upper Peninsula, check out Save the Wild UP’s website, learn about the critical work they’re doing, and consider making an end-of-year, tax-deductible contribution to support their work.

I’ll post the text of my remarks here after I talk.

On Monday, December 7th, the Peter White Library in Marquette will be screening 1913 Massacre,, the feature length documentary film I made with Ken Ross about the Italian Hall disaster and the Woody Guthrie song it inspired. Part of the library’s DocuMonday series, the screening is free and open to the public. The film starts at 7PM and runs 70 minutes, and I’ll stick around afterwards to take questions, talk and say hi.

Hope to see you there.

12-7DocuMonday

Mark Your Calendars

This week, the Michigan Senate unanimously passed a resolution brought to the floor by Senator Tom Casperson, who represents the 38th district. Senate Resolution 27 declares an official day to commemorate mining in Michigan. Mining Day will fall on September 6th.

It’s clever to create a holiday for mining on 9/06 — the area code of the Upper Peninsula. But it’s also a little strange that the holiday will fall on a Sunday in its inaugural year (so much for sabbath and the respite it promises from the workaday world). Labor Day falls on the 7th of this year, and on the 5th in 2016; so maybe Mining Day will help put the focus on the Upper Peninsula’s archetypal laborer, the miner. But as the text of the resolution never even uses the word “miner,” “worker,” “labor” or “laborer,” and notes only in passing that mining in the UP “attracted immigrants from around the world,” it might be a little hasty or naive to conclude this measure is being taken to honor the working men and women of the region.

Casperson himself promotes Mining Day as a day to recognize the role of mining “in the settling of Michigan’s Upper Peninsula” and as a “way of life” characteristic of the region, and in a press release, he added that the day would also be an opportunity to “celebrate and support responsible mining operations” in the state. So SR 27 doesn’t just look back to a bygone era of mining, but forward, positioning mining as a “growing industry” in Michigan. The adopted resolution even includes language about the “Limestone mines” in the news lately.

In this way, SR 27 tees up a second resolution that Casperson introduced: SR 28, another pro-mining measure that met with unanimous approval. In this resolution, the Senate expresses its unqualified “support for the renewed growth of mining in Michigan.”

This is not just boosterism or servile flattery. SR 28 actually serves a couple of important political functions.

First, it burnishes Casperson’s legislative track record at no political cost. Down the road, he can and probably will claim some responsibility for the jobs that mining companies create in the UP.

Second, SR 28 establishes legislative precedent. Casperson and others can point to this resolution and the unanimous support it received when introducing other pro-mining legislation or when confronted with challenges to mining projects already underway. Interviewed about the bill, Casperson made this explicit: “we will work to remove any remaining barriers that could inhibit the continued growth of responsible mining interests in Michigan.” No barriers to continued growth: but still, somehow, “responsible,” as if responsibility can be had without limits.

The barriers to growth Casperson has in mind are, first and foremost, the flimsy ones upheld, but barely, by the EPA in the face of the new mining boom. The federal agency has not prevented any mining projects in Michigan; but it has so far been the primary obstacle to the building of CR 595, which was originally planned as a haul route for Lundin’s Eagle Mine. The EPA entered and then upheld its objections to construction of the road, and denied the Michigan Department of Environmental Quality authority to permit the road. (The US Army Corps of Engineers along with the US Fish and Wildlife Service had also entered objections.)

Casperson elsewhere has tried to cast this as a standoff between state sovereignty and federal government intrusion. Now, with SR 28, Senator Casperson has enlisted the full body of the Michigan Senate in his crusade to cut that haul road through the Michigan wilderness, and show big government what’s what in Michigan. (He’s been on similar state-sovereignty kicks to reinstate wolf-hunts — which caused him some embarrassment when he was caught fabricating stories of children being stalked by wolves — and to prevent the limiting of emissions from wood-burning stoves by the EPA.)

Casperson is now colluding with the Marquette County Road Commission to sue the EPA over CR 595. So far, the Road Commission and affiliated CR 595 die-hards have created a 501c4 non-profit organization called Stand U.P., which says it will raise $500,000 to cover the lawsuit. But there’s no reason to stop there. As a 501c4, Stand U.P. can fund the EPA lawsuit as well as a broad range of activities in the name of improving the “social welfare” — a concept even the IRS calls “abstruse” and lacking any clear definition. 501c4 organizations are not required to disclose the names of donors, but Brian Cabell figures “it’s safe to say” that the money for Stand U.P. won’t come in “$5 contributions or bake sales or lemonade stands. It’s mostly corporate money.”

Even if the EPA lawsuit fails, then, there is little to prevent Stand U.P. from becoming (unless it already is) a trough of dark money. No wonder the Senator is eager to celebrate mining’s return to the Upper Peninsula.

A Mining Renaissance?

On the Almanac program I discussed in yesterday’s post, Kathryn Hoffman cited “42 exceedances of water quality standards” at Eagle Mine to make the point that reverse-osmosis technology isn’t as effective as mining proponents in Minnesota make it out to be. I was expecting some rundown of those exceedances in Codi Kozacek’s January 8th article about Eagle Mine on Circle of Blue; but Kozacek focuses, instead, on the Eagle Mine water-monitoring agreement Rio Tinto struck with Superior Watershed Partnership and Land Trust two years ago.

It’s not hard to see why. Kozacek seems to have traveled from Hawaii (where she’s based) to the UP to do some interviews and take some photographs: it appears she was there in summertime. But so far as I can tell she’s based her article on a “case study” jointly commissioned by Rio Tinto and the Superior Watershed Partnership, a piece of bespoke research entitled Unity of Place: Giving Birth to Community Environmental Monitoring.

In fact, the opening of Kozacek’s article documenting – or should I say celebrating? — this “unprecedented” water-monitoring agreement seems to be nothing more than a loose paraphrase of that publication, which tells the story of how the community around Eagle Mine gained “a measure of power over the mine. And it was Rio Tinto that gave it to them.”

Leave aside for the moment the preposterous idea that that power was Rio Tinto’s to give in the first place: the Unity of Place case study simply asks us to accept that business can and will decide the power society has over it, and Kozacek seems untroubled by the notion. That Rio Tinto sold Eagle Mine to Lundin Mining after descending from the heights to strike this unprecedented power-sharing agreement with the little people living around the mine does not give her pause, or raise questions about the mining giant’s good faith or much-touted commitment to the community around Eagle; and Kozacek only gets around to mentioning the sale to Lundin 28 paragraphs into her 34-paragraph story.

For the sake of balance, she includes a couple of interviews with “skeptics,” people who remain, to this day, distrustful of the water monitoring agreement but express the hope that it will have some good effect. She mentions the uranium leakage discovered at Eagle last year, which she offers as proof of the success of the program in alerting “the public to potential water quality threats,” quoting the Superior Watershed Partnership’s Jerry Maynard (who is also featured prominently in Unity of Place): the monitoring program, he says, “is gaining the trust and respect of the community….We want this to get out there—we want other mining communities to say ‘we want this too.’” But she fails to mention any other exceedances or violations – I guess she missed that episode of Almanac before filing her story — and apparently didn’t bother looking into the new water story now unfolding around Eagle Mine: the renewal of the mine’s groundwater discharge permit. (Michele Bourdieu has that story over at Keweenaw Now.)

My guess is that Kozacek is unfazed by any of these questions and complications, because the real story she wants to tell here is the story of a mining “renaissance”: she uses the word a few times in her article, once as a header and then twice in the body:

The Eagle Mine is viewed as either on the leading edge or the troubling future of a mining renaissance in Michigan’s Upper Peninsula, a region that has seen more mining bust than boom in the past 50 years. Just as in the oil and gas industry, improvements in mining technology are making previously overlooked ore bodies economically attractive. Rapidly developing countries, particularly China and Brazil, are driving demand for iron, copper, nickel, silver, and gold.

But many of the once booming mine communities in the U.P. and northern Wisconsin, operating with a fraction of their historical populations and downtowns darkened by empty storefronts, are eager for a mining renaissance.

Not a return of mining. Not a re-opening of the mines. Not a new mineral leasing, exploration and mining boom (which would have to be followed by yet another bust). A mining renaissance. It’s an odd word for someone writing about water issues to choose. I wonder if the ungainly use of the word “birth” in the subtitle of the Rio Tinto-Superior Watershed case study inspired Kozacek here: with the “Birth” of “Community Environmental Monitoring” advertised on the cover and on every recto page of that pamphlet, why not imagine a rebirth – and wouldn’t the word “renaissance” be so much more elegant? – of mining?

MinersAtVillanders

Renaissance miners, in the early 16th-century stained glass window of the Villanders parish church.

It’s at best an ugly parody of historical discourse, but I take it that it’s intended to give the new mining around Lake Superior a historical stature that it would otherwise seem to lack. In the second of the two paragraphs I’ve quoted here, Kozacek even imagines the area longing to emerge from a kind of Dark Age, or at least “darkened” downtowns, into renewed prosperity.

But in the first of those paragraphs, I must admit, she does a pretty good job of spelling things out. New extractive technologies have made it not only possible but “economically attractive” (read: highly profitable) for large multinational players to mine previously neglected or abandoned ore deposits, extract oil from tar sands and drill for natural gas by fracking. Chinese urbanization and rapid development in the BRIC countries continue to drive and raise demand for minerals and fossil fuels, as economic power shifts away from developed, Western economies.

Communities in the Upper Peninsula and all around Lake Superior are now feeling the pressures of these bigger changes. Whether they will bring renewal — or more boom and bust, or just catastrophic demise – is another question altogether.

Haul Road to China

Ore Truck
The mid-day flight from Marquette to Detroit last week was delayed for a few hours, and while we waited I had a pleasant conversation with a man who was on his way back to San Jose, California. He’d been in the Upper Peninsula visiting his father and staying in a cabin that’s been in his family for several generations. “It’s a little red cabin,” he said, “the one you see in all the postcards and stuff.” I’m not sure I’ve ever seen the place, but I’ve been to the UP enough to know from his description roughly where the cabin is. It wasn’t until we were on our way to Detroit a few hours later that it dawned on me: his family cabin is situated right on the new Eagle Mine haul road.

Once the mine is in operation, ore trucks will pass by 100 times every day, making 50 trips down County Road 550 to US 41 via Sugarloaf Avenue and Wright Street. At the Humboldt Mill, the big trucks will dump their loads, turn around and make their way by the same route back to the mine. So much for those quiet family retreats to the picture-postcard cabin. He might as well turn the place into a diner or gas station, or open a 7-11.

Haul roads and trucking routes have been a point of contention ever since the Eagle Mine was planned, and they are now a bigger issue than ever, with the City of Marquette announcing last week that it wanted a new environmental review of any plan to haul ore down the Big Bay Road, through woods and over blue-ribbon trout streams, past the NMU campus, and into the town’s commercial district. It seems people in Marquette are finally realizing with horror what’s going to happen to their beautiful city and the nearby wilderness areas once those trucks start hauling ore out of Eagle.

Rio Tinto huffed and bluffed about their haul route for years, and when plans for County Road 595 fell through, they huffed and bluffed some more about the multi-million dollar investment they would make to upgrade existing roads. Who knows what Rio Tinto told Lundin Mining about infrastructure when they sold the Eagle Mine; but (as I noted in a previous post) Paul Conibear, Lundin’s CEO, did not seem fully in possession of the facts, or was not very forthcoming about what facts he possessed, when he said that good roads were one of the things that made the Eagle Mine so attractive.

An old timer in the Upper Peninsula once told me with pride that you can drive US 41 south all the way from the Keweenaw to Miami, Florida. He could not have imagined where that same road now leads. The ore trucked down US 41 will likely end up in China, where urbanization on a scale and at a pace we can hardly imagine is driving demand for materials like the copper and nickel that northern Michigan has in abundance. Rio Tinto’s business strategy depends on rapid Chinese and, more broadly, Asian urbanization (and with the imminent opening of Oyu Tolgoi — which will ship copper from Mongolia directly to Chinese smelters — the road from Eagle must have seemed an awfully long and unnecessarily expensive haul). The Chinese government’s ambitious plans to move hundreds of millions of people into megacities and move the country to a consumer economy shape the business decisions of mining companies and will also help determine the price Michigan copper and nickel fetch. That’s why analysts who foresee a further Chinese slowdown or predict the bursting of the Chinese credit bubble advise shorting Rio and other big mining stocks.

An article about Chinese urbanization in the Times last month characterized it as a risky, large-scale, “top-down” social experiment which has already exacted huge costs: across China, rural villages are being razed, temples torn down, farmers forced from their land and moved into high-rise towers, fields and farmland paved over — often by government fiat. A little imagination and you can see the Marquette haul road as a remote extension of that effort, and it doesn’t take much imagination at all to appreciate that the road will exact its own social and environmental costs. The truck route from mine to mill will carve a noisy, busy, dirty industrial corridor along Big Bay Road and right through the city of Marquette — threatening wildlife all along the route and permanently changing the way people live around the Lake. Everything is at risk of becoming roadkill.

The Limits of Corporate Benevolence, from Mongolia to Michigan

The phrase “human rights” is nowhere to be found in the Oyu Tolgoi Investment Agreement, a document [pdf] that will play a critical role in guiding Mongolia’s development over the next decade. The Agreement sets the terms for the $6.2 billion investment in the Oyu Tolgoi gold and copper mining project, which promises to account for no less than one-third of Mongolia’s GDP by the year 2020. Rio Tinto has a 66 percent stake in the project through its subsidiary, Turquoise Hill Resources Ltd; the Mongolian government owns the rest.

Along with the serious environmental concerns cited by the United States when it abstained, in February of this year, from a World Bank investment scheme in Oyu Tolgoi, there are a host of human rights issues to address — from migrancy to land seizures, rights to the scarce water resources of the Gobi desert region, conditions in Ulaanbaatar’s Ger camps, and the survival of Mongolia’s herder communities. (The Bank Information Center provides an overview of these concerns, here and here.) The Investment Agreement briefly addresses some of these points, but it resorts, in all instances, to what I would call the language of corporate benevolence.

So the Investor agrees to abide by the Extractive Industries Transparency Initiative (a voluntary agreement to publish payments made by the Oyu Tolgoi mine to the government); in another place (section 4.13; but cf. also section 4.6) the Investor consents to “build and maintain productive working relationships, based on principles of transparency, accountability, accuracy, trust, respect and mutual interests, with non-governmental organizations, civic groups, civil councils and other stakeholders.” Beyond this, there is not much else to guide or govern the company’s conduct vis a vis civil society and its responsibility to respect human rights.

Given the high stakes, the scale of Oyu Tolgoi and the involvement of the World Bank and IFC in the project, it is surprising the Agreement does not explicitly incorporate — or reference — the UN Guiding Principles on Business and Human Rights. Instead of creating binding agreements or even practical mechanisms to ensure that Oyu Tolgoi and the government of Mongolia meet their respective human rights obligations as the economy accelerates and the social terrain continues to shift, the Investment Agreement relies on the language of corporate social responsibility to smooth things over.

Part of the trouble with CSR isn’t just that it tends to replace binding agreements and articulated responsibilities with vague sentiments, the language of corporate benevolence, and promises of sustainability and shared prosperity. That’s bound to happen when social responsibility meets public relations. A bigger problem is that the commitments companies voluntarily make to contribute to economic development and social progress — and to respect human rights — will last only as long as the business requires them.

For an example of how abruptly a company can ditch stakeholder communities, what happened in Michigan yesterday with another Rio Tinto project may turn out to be more instructive than what’s happening right now in Mongolia. In the face of serious environmental and human rights challenges to its Eagle Mine project over the last several years, Rio Tinto all along touted its good corporate citizenship, promising to “leave more wood on the woodpile” and to take an active hand in the long term, “sustainable development” of the Upper Peninsula. That is just part of “The Way We Work,” as the title of a Rio Tinto CSR publication would have it — or at least it was the Way We Worked. Yesterday, the company announced that it had sold the Eagle Mine project to Toronto-based Lundin Mining for the tidy sum of $325 million cash — part of CEO Sam Walsh’s strategy to divest from “non-core” assets and protect the single-A credit rating the company currently enjoys. A community of stakeholders whose future Rio Tinto promised to make happy, bright and prosperous became, overnight, a disposable asset.

Drop the Mic: Rio Tinto Community Forums

Last month, in towns around the Big Bay area of Michigan’s Upper Peninsula, global mining giant Rio Tinto held the second in its series of “community scorecard” forums. At these events, people from the communities around Rio Tinto’s Kennecott Eagle Mine project are asked to score the company on its performance in five areas: environmental performance, local hiring, safety, transparency and communication, and, finally, something the company calls “leaving more wood on the woodpile,” which is supposed to be a folksy way of talking about the company’s contributions to the development of the region.

Rio Tinto prides itself on these forums: “to our knowledge no other mining company has introduced a tool that allows the community to regularly rate their performance, which is then made public. We hope with the Eagle Mine Community Scorecard the UP continues to set new benchmarks in how modern mining works with communities.” But after reading a few accounts of the forums and watching some video clips of the meetings included on Keweenaw Now, a local blog, all I see is a lost opportunity.

Turnout at these forums has been low — about fifty people showed up for the biggest forum in Marquette, and most of them were Rio Tinto employees — so the scorecard results, which the company touts as proof of social license, will hardly stand close scrutiny. “It’s a global mining corporation’s idea of democracy,” remarked Kathleen Heideman of Save the Wild UP. “First they show slides about how great they are — then we should click to indicate our agreement. That’s meaningless.” Even when the company allowed questions and comments before the scoring period at a May 15th meeting in L’Anse, the meeting could hardly be described as an authentic community forum.

Rio Tinto may think that with these forums it’s doing something entirely new, but in reality the company is making a lot of old mistakes.

If these community forums are going to be anything more than a public relations exercise with predetermined outcomes, the current design of the forum needs to be scrapped and they need to be radically reconceived. Voices from the communities around the Eagle Mine need to be heard and heeded — to use a phrase I’ve used elsewhere (e.g., here and here) to talk about what real listening takes — and the power dynamic in these forums needs to shift. Otherwise, I don’t see much chance of the forums making the slightest difference in how the mining company operates, how it contributes to the development of the region, and whether it can ever enjoy social license to operate in the UP. Those are all things Rio Tinto claims it cares about.

In the video clips posted on Keweenaw Now, you can see how things went. Put aside, for the moment, the content of the discussion (which, despite the company’s attempt to kill the discussion by PowerPoint, is rich and provocative — a real tribute to the local citizens who did their homework and turned out for the meeting). You don’t have to know anything about the situation in the Upper Peninsula to sense that things are amiss. Focus on just one very telling detail in the video clips: who’s holding the microphone? At Rio Tinto Community Scorecard forums, the Rio Tinto people stand at the front of the room and speak into microphones. Nobody else does.

This may seem like a small detail. There are, after all, big things at stake — the integrity of the environment around Big Bay and the Salmon Trout River, the economic future of the Upper Peninsula as well as the future of life on Lake Superior. Rio Tinto’s Eagle mine opens the first phase of one of the biggest mining operations in the world — which is about to be staged around one of the biggest freshwater lakes in the world. This is a critical turning point. All around Lake Superior, things are going to change: things are already changing. Surely it can’t matter who’s standing where and whether they are holding a microphone?

I think it might.

Here’s a typical clip, where Jeffery Loman of the Keweenaw Bay Indian Community asks Rio Tinto’s Matt Johnson about the permitting process for discharging mining effluent into groundwater and surface water.

Johnson stands in front of his PowerPoint slides, holding the microphone as Loman, seated with the others in attendance, tries to engage him. At around 2:40 in the clip, when Johnson feels that the question is too technical for him to answer, he hands off to Kristen Mariuzza, Rio Tinto Eagle Project Environmental and Permitting Manager. And what does Mariuzza do? She marches to the front of the room and takes the microphone.

Mariuzza probably does this thinking that it’s the only way everybody in the room can hear her, or she’s so accustomed to presenting in a Rio Tinto corporate setting that she doesn’t know how to drop the act in other settings. Everyone can obviously hear Loman, who remains seated and addresses Johnson and Mariuzza in a normal tone of voice. It’s curious, isn’t it? Johnson and Mariuzza seem to be the only people in the room who require a microphone in order to speak and to be heard. Why do their voices need to be amplified above all others? That is, after all, what microphones do: they amplify one voice so that others are relegated to the background, or drowned out altogether. So both Johnson and Mariuzza are speaking over the community, and (I don’t choose this word lightly) dominating the discussion. The microphone sets the power dynamic of the situation.

Some of us are old enough to remember those corny Popeil TV commercials for a product called Mr. Microphone. The commercial runs through a number of different scenarios in which people use this amazing product to amplify their voices — transmitting it to a radio and broadcasting it for all to hear.

Essentially each scenario is the same: everyone finds Mr. Microphone amazing, but everyone is most amazed at the magical sound of his or her own voice coming through the radio. People around them laugh and notice, but the astonishment, the surprise, the wonder at Mr. Microphone is a deeply narcissistic pleasure. Something like that is happening here, to a lesser degree but with graver consequences. The people from Rio Tinto are amplifying — and most likely hearing — only their own voices, not the voices of others, and they are, I’d venture, deriving from that experience a false sense of satisfaction at having engaged with the local community.

What could they be doing instead? For starters, I would suggest they ditch the microphones, so that no one’s voice is amplified over all others. This won’t solve the problems being discussed, but it will increase the chances for voices from around the community to be heard. If people seated in the back of the room can’t hear what’s being said, then it can be repeated for their benefit: there’s value in repetition, as it gives everyone in the room a chance to assess again what’s being said and agree that someone’s view is being accurately communicated. Efficiency is not a virtue of real conversation.

If the Rio Tinto people are not standing at the front of the room holding a microphone, what will they do? Sit down — and not at the front of the room, where they are sure to command attention and where everyone must ultimately direct their remarks. There is no good reason not to sit in the same chairs that are comfortably accommodating the people with whom one is meeting. Again, this sounds like a minor adjustment, almost a point of etiquette, but I have seen this work wonders in classrooms deliberately designed so there is no front of the room, in corporate as well as academic settings. This way, anyone in the room can lead the conversation at any given time.

Now the room is starting to look like a face-to-face meeting — with everyone’s face at the same level and everyone seated at roughly the same distance from each other. Let’s not pretend for a moment that this will somehow put Rio Tinto on equal footing with the citizens in the room. Johnson and Mariuzza represent a multi-billion dollar global mining company with tremendous power and enormous reach in the Michigan legislature and beyond, to the highest levels of national government. In fact, Matt Johnson himself came out of Governor Jennifer Granholm’s administration to work for Rio Tinto as its local front man on the Kennecott project; Mariuzza also walked through a revolving door, out of government and into Rio Tinto. So there is a huge power disparity in the room — one that a simple conversation like this cannot bridge. But at least with these and other changes there might be a chance at conversation.

There are other steps the mining company can take if it is serious about developing these forums. Here are just a few:

Relinquish control. A credible, independent third party, someone who isn’t in Rio Tinto’s employ, should moderate and facilitate the conversation. Right now the flow of the conversation is controlled by the man with the microphone. A facilitator can help the whole group focus on issues, clarify what’s being said and ensure that people in the room are being heard.

Map the conversation. It looks as if right now there’s no way to capture what’s being said in the room and ensure that everybody agrees on what was said and that their point of view is being adequately represented. Video cameras record, but they also capture one point of view. Some sheets of white paper or a whiteboard would allow one person to track the conversation, and make it possible for anyone to stand up and edit, on the spot, what’s on them.

No more dog and pony. The PowerPoint show should be left where it belongs — back at the corporate office. It is a way to control the narrative, discouraging conversation, other points of view and other stories. If diagrams or maps are required for the conversation, then anyone in the room should be able to control the slideshow — and anyone in the room should be able to introduce slides.

These Community Scorecard forums may ultimately succeed or continue to fail, but people living around the Eagle Mine don’t need microphones or PowerPoint slides or corporate sponsors to talk about what’s happening in their communities. Towns and townships in the Upper Peninsula and communities all around Lake Superior may not have the clout of Rio Tinto or any of the other mining companies, but they have each other — and there’s great power in that, or at least there can be, no matter how much wood Rio Tinto leaves or does not leave on the woodpile.

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.

Race You To The Water

The other day I expressed some misgivings over the word that Earthworks chose to apply to water in the first sentence of its report, Polluting the Future: their characterization of water as an “asset,” I said, made me uneasy. The water flowing from springs and brooks, the water of rivers, lakes and streams, the raindrops that fall from the sky and the dew on the morning grass, the water in our bodies, in plants and trees, the water in dogs, flowers, bugs, fish, elephants, walruses and caterpillars, the water in everything that is alive on earth — water is and will always be something greater, more wondrous and something other than a mere entry in the accounting ledgers of some grand business enterprise, which is all that the word “asset” conjures for me.

greatlakesoilI came across the word again today as I was reading an editorial in The Detroit Free Press. I am in complete sympathy with the position it takes against plans to build a huge network of oil pipelines carrying diluted bitumen (or dilbit) across the Great Lakes region, and to transport crude oil by barge across Lake Superior. These are reckless, irresponsible ideas. The threat they pose to the integrity of the Lakes and the life the Lakes sustain is only made worse when you consider a couple of salient facts. First (and it is curious that the editorial does not mention this), the new mining around Lake Superior — as I’ve noted repeatedly — is already going to put pressure on Lake Superior and the Lake Superior watershed; the shipping of oil by barge would bring even more industrialization and greatly heighten the risk of environmental catastrophe. Second, the company building and running the pipeline (the Canadian company Enbridge) has already been responsible for an environmental disaster in Kalamazoo, Michigan — the worst inland oil spill in US history, in fact.

The editorial takes the position that these plans betray a “deep misunderstanding of the true value of the lakes,” but when the editors try to say what that value is, they run into trouble:

It’s easy to wax poetic about the value of the Great Lakes to Michigan and the other states they border. The beauty of the lakes, the wildlife and fish that dwell in and around the lakes, the environmental benefits the lakes present — they’re incalculable.

But let’s get practical: Clean freshwater is one of the scarcest commodities there is. And it’s only going to get worse. Clean water will be an asset that’s worth far more than oil. Jeopardizing the Great Lakes isn’t just morally and ethically wrong. It’s financially foolish, as well.

It’s interesting how the argument here moves, in just a couple of short paragraphs, from the “incalculable” to the crudest of calculations — the “worth” of clean water. This is tantamount to arguing that what is “morally and ethically” right should take second place to what is financially sound — as if finance should have more claim on the imagination and intellect (and the heart) than morality, and monetary value should be privileged over moral and ethical considerations.

I suppose that’s the way it goes nowadays, and I just need to get real. Still, there’s a great swirl of confusion in these two paragraphs, and I have a number of questions about the concept of morality being invoked here, how we’re to distinguish it from ethics, and why those things don’t seem to figure into what are called “practical” considerations. Practice and finance here are unmoored from and unrestricted by moral and ethical concerns; it’s precisely that kind of thinking that got us into the precarious situation we’re now in.

One remedy for all this confusion may lie in the perspective that holds water to be a basic human right — a perspective I also found missing from the Earthworks report. But even then we need to go beyond talking about assets and recognize the limitations of the argument that “clean freshwater is one of the scarcest commodities.” Why? Follow the link from The Detroit Free Press editorial to the National Geographic site on the “Freshwater Crisis.” There you enter a Malthusian world:

While the amount of freshwater on the planet has remained fairly constant over time—continually recycled through the atmosphere and back into our cups—the population has exploded. This means that every year competition for a clean, copious supply of water for drinking, cooking, bathing, and sustaining life intensifies.

bilquaszwaterchildHere, all of humanity is engaged in a contest or race. More and more people enter every year to compete for the same, limited resources. This is one reason why it’s imperative to recognize freshwater as a human right. Otherwise, history becomes a death match, or a big, global reality TV show: intensifying “competition” over this scarce “commodity” means that there will be winners and losers in the water game. The winners are fully vested with their rights; the losers struggle to survive in arid, toxic regions, or simply die of thirst.