Tag Archives: pollution

Will Pruitt Retreat From the Yellow Dog Plains?

It’s no coincidence that the Marquette County Road Commission announced that it would renew the battle for County Road 595 just as the U.S. Senate geared up to confirm Oklahoma Attorney General Scott Pruitt as head of the EPA.

CR 595 seemed like a lost cause after Judge Robert Holmes Bell denied a motion to alter or amend his dismissal of MCRC v. EPA back in December. (I wrote about that motion here). But if the election of Trump and his nomination of Pruitt can change the outlook for big mining projects like the Pebble Mine in Alaska, it can certainly help the MCRC build a haul road for Lundin Mining through the Yellow Dog wilderness.

A federal mediator is now scheduled to hear from both sides on March 9th. The appeal will go forward in the event the parties cannot agree.

The Pacific Legal Foundation — which now represents the MCRC — is clearly well equipped to appeal Bell’s decision. The libertarian-leaning PLF are even more likely than their Clark Hill predecessors to grandstand about federal overreach and economic self-determination. As I’ve tried to suggest in other posts (e.g., here or here), that’s cynical posturing: in this case a victory for the Road Commission will amount to ceding economic development authority to a Canadian mining company and its local proxies.

But libertarian huffing and puffing will not be what makes the Pacific Legal Foundation especially formidable. The PLF argued, and won, the Hawkes decision — which, as I explained in previous post, allowed the plaintiffs to challenge a ruling that wetlands on their property were subject to the Clean Water Act — and they regard Judge Bell’s rejection of the Hawkes decision in the CR 595 case as “a legally reversible error.” Indeed, the PLF are already advertising the Marquette County Road Commission’s case on their blog as “Hawkes Come to Michigan.”

And after today’s confirmation of Pruitt, the PLF will likely have have a much less formidable opponent in the EPA. The decision to go forward with this appeal clearly took that into account. Hawkes may not need to come to Michigan at all. Pruitt might just order the EPA to retreat.

Update, 24 August 2017: New briefs recently filed with the Sixth Circuit Court of Appeals show the Road Commission asking to present oral arguments in this case.

The case turns on three points: whether EPA objections constitute “final agency action” and are therefore subject to judicial review (a claim I explored here); failing that first condition, judicial review might be warranted under Leedom v. Kyne (which provides an exception to the final agency action rule when an agency’s conduct is “a readily-observable usurpation of power,” but the court has already ruled that the Leedom exception does not apply in this case); failing on those scores, the Road Commission wants to invoke a “futility exception” in order to bring the case under judicial review: the Army Corps of Engineers, they say, had already decided against County Road 595, and there was no point in returning to the permit process. But as the EPA notes in its 8 August response, this is speculative on the part of the Road Commission.

The larger issue here — which helps put the MCRC case in context — is that this ongoing litigation concerns a provision of the Clean Water Act, Section 404, which covers permits issued to discharge dredged or fill materials into the waters of the United States. Since stepping into his role at EPA, Scott Pruitt has been leading the charge to rescind the Obama-era definition those waters, revert to an earlier (pre-2015) definition, and make enforcement of the Clean Water Act more favorable to industries like mining.  If MCRC v. EPA continues to make its way through the courts, the case could easily become caught up in the toxic politics of Pruitt’s tenure at EPA.

Some remarks on “another kind of power”

A new post about the merger of two Upper Peninsula environmental organizations on Keweenaw Now includes this short video excerpt of the talk I gave in Marquette, Michigan a while back about the power and responsibility we have to protect water and wild places from unsustainable development.

You can read the full text of my remarks here.

Dialogue at the Rock

Wisconsin Department of Natural Resources aerial photo of Flambeau Mine, after reclamation.

Wisconsin Department of Natural Resources aerial photo of Flambeau Mine, after reclamation.


Bill Rose, Professor Emeritus at Michigan Technological University, hopes the big rock brought over to the university from Eagle Mine — three and a half tons of nickel-copper sulfide, suffused with platinum and rare elements — will be a site for respectful gatherings. Rose says he wants to get beyond divisive and fruitless “bickering” over mining, and hopes for “constructive dialogue about mining, its opportunities and threats.” That’s a conversation many people in the Upper Peninsula have been trying, and mostly failing, to have for more than a decade.

Building dialogue about mining is notoriously difficult, even in the friendliest jurisdictions. Part of the trouble — but only part of the trouble — is that companies come to the table having invested enormous amounts of capital (and usually in a panic to service their debt and start delivering for shareholders). They are focused on the short term and the near horizon. It’s not surprising they often refuse to listen, listen badly, or try to co-opt the dialogue from the outset; and that puts people on guard. Public participation usually gets kettled to “public comment” periods overseen by a government agency or sham community forums (like the ones Rio Tinto tried to stage in the Marquette area back around 2012 and 2013). Before too long, ordinary people realize decisions about the place they live are being made elsewhere, without them.

Professor Rose says he wants “the public to participate,” but it’s unclear from his remarks (as reported) exactly he means by that, or how far beyond gawking at the big rock and marveling at new mining technology he and his colleagues want public participation to extend. Where does his invitation lead? The dialogue about mining seems to be already set within a familiar public relations narrative that is rushing toward conclusions.

This narrative features the idea that sulfide mining can now cover its tracks through reclamation and water treatment, leaving no lasting effects. So Dean Wayne Pennington (who was on hand to announce the revival of a mining engineering as a degree program at MTU) expressed confidence that new mining methods will “ensure that no legacy situations are left for future generations.” In this context, “legacy” is code for water pollution. Examples of sulfide mining’s toxic legacy are not hard to find. Some examples of “no legacy” mining would have helped Pennington’s case.

The stock example from Eagle Mine public relations — which has also been used in promoting the Polymet project in Minnesota — is the Flambeau Mine near Ladysmith, Wisconsin. Flambeau is a Rio Tinto/Kennecott project advertised as a sulfide mining reclamation success story, despite repeated litigation over less than satisfactory water quality results. The mining company won in the courts, but Flambeau remains controversial.

For his part, Rose likened “mining with environmental responsibility” to dentistry. That is not supposed to make you squirm in your chair; it’s meant to reassure people that new technology will be sufficient to address environmental concerns about sulfide mining. It also goes further, portraying mining as therapeutic — an extraction necessary to relieve pain and maintain health. Before the conversation even gets underway, we are being asked to accept technology as a proxy for responsibility and to see mining as a way of caring for the earth.

This is the story created around the big rock at Michigan Tech: the greening of mining and the benevolent power of technology. Mining is being naturalized here — made part of or partner to nature; nature, the earth itself is being remade and reclaimed by new mining technology. This theme emerged again with a new twist at the dedication ceremony, when Michigan Geological Survey Director John Yellich stood beside the big boulder to push for a new geological survey.

Yellich started out praising the “infrastructure” of the UP: “we have electrical, we have internet access and we have roads better than what [they] were.” But in a confusing turn, he moved quickly — in the same breath — from talking about mining-friendly infrastructure to talking about “people coming in and enjoying what we have here in the UP.” Yellich was obviously trying to find a way to finish his statement for the TV cameras, and end on a positive note; so he played the Peninsulam Amœnam card, and talked about mining in language ordinarily reserved for tourism.

For a brief moment, we were asked to imagine that haul roads (a continuing source of controversy and litigation around the Eagle Mine project) were scenic lakeside byways for Sunday drivers or winding paths through a quiet wood, and that UP tourism would benefit directly from further mining development.

It appears this new dialogue about mining is already off to a confusing, false start.

The Political Project of MCRC v. EPA, 4

Fourth In A Series

A still from a Tom Casperson campaign spot, in which Casperson (left) says the UP is “truly someplace special…now facing truly special challenges,” among them, “standing against the EPA and the unreasonable overreach of other agencies.”

Demagoguery

Michigan State Senator Tom Casperson is the most visible political figure associated with the MCRC v. EPA lawsuit, the agent if not the author of its political project. We don’t know exactly what or how much he did to encourage members of the Marquette County Road Commission to take the EPA to court, what assurances were given and what expectations were put in place, as at least some of those meetings appear to have been conducted on the down low (and in violation of the Open Meetings Act). But the Escanaba Republican has never been shy about his support for CR 595 or his hostility toward the EPA.

Brian Cabell is stating what seems obvious when he links Casperson’s support for CR 595 to his business associations with timber and trucking in the Upper Peninsula, and it’s reasonable to believe that timber interests are among the donors to Stand U.P., the 501c4 dark money association funding the Road Commission’s lawsuit against the EPA. Before entering public life, Casperson succeeded his father as owner and operator of Casperson & Son Trucking, a log-trucking business started by his grandfather and based in Escanaba, Michigan. Associations like the Michigan Forest Products Council, the Great Lakes Timber Professionals and the Michigan Association of Timbermen support and celebrate the Senator’s achievements.

But those relatively direct and straightforward business associations are probably not the only ones in play here, and in supporting CR 595 and encouraging the CR 595 lawsuit, Casperson appears to be doing more than a little favor for himself and his friends back home in the timber and trucking industries. While a 2013 tally of Casperson’s supporters shows — not surprisingly for a Republican politician in the UP — that Michigan mining, timber and fossil-fuel PACs have been among his biggest backers, I suspect the MCRC lawsuit will serve an even deeper and more shadowy entanglement of alliances and alignments.

In parts 1, 2, and 3 of this series, I’ve described the formation of a political authority, or power bloc, that now pretends to direct economic development in the UP and decide what’s in the region’s best interests. That project is closely bound up with Casperson’s own political ambitions, and those ambitions are hardly limited to advocating for this haul road. Tom Casperson covets a seat above his current station, a role on the national stage; or at least he once coveted that bigger role, and politicians don’t often reconcile themselves to less power than they think they deserve. In 2008, Casperson ran against Bart Stupak to represent Michigan’s first district in the U.S. Congress. He made a pretty good showing, with nearly 33% of the vote against the incumbent’s 65%. With Stupak’s successor Dan Benishek announcing in March that in 2016 he’s running for a fourth term (after pledging to serve only three terms), Casperson will have to cool his heels until 2018. In the meantime, however Senator Casperson has a constructive role to play.

Casperson gained a certain notoriety in 2013 when he expressed doubts during a radio interview about whether President Obama was born in the United States, but he never found his footing as a birther, at least not in public. He’s spent most of his political career fighting the EPA and the regulation of industry in Michigan. That’s apparently where his heart is. Back in 2008, when he ran against Stupak, Casperson represented oil drilling as “lining up with my core beliefs.” At the time, he also claimed that the National Environmental Protection Act (passed in 1970) has regulators “walking around looking for amoebae on the ground so that they can find something to block timber sales,” and whined that environmentalism was “bringing the country to its knees.”

In 2011, Senator Casperson introduced a resolution (SR-10) “to impose a moratorium on greenhouse gas, air quality, and other regulatory actions by the Environmental Protection Agency” and require the EPA to account for the cumulative economic effect of “all regulatory activity” on climate change, air quality, water use, and coal ash. He recently joined Dan Benishek in opposing the Obama administration’s modifications of the Clean Water Act as “regulatory overreach” — echoing the point urged by other conservative opponents of the rule, who lined up obediently behind mining, fossil-fuel and energy producers, big agriculture and fertilizer companies like Koch.

Blaming the “war on coal” — the phrase itself is borrowed from the lexicon of climate change denial — for the closing of Marquette’s Presque Isle coal plant, Casperson warns that “there is no bigger threat to affordable, reliable electrical service to our districts than the EPA.” He grandstands about the EPA at every opportunity: “At some point,” he said back in March, “somebody’s got to take a stand here or they will take our way of life away from us. Clearly, they don’t like mining, clearly they don’t like timbering and quite frankly it appears they don’t really care much for us using the great outdoors unless they give us their permission and I think that’s unacceptable.”  

For Tom Casperson, any and every environmental regulation poses an existential threat. Against this ever present danger, he is out to protect what he frequently calls the UP “way of life” and force a David and Goliath standoff with the federal government. “The burdensome regulations proposed by the EPA,” he said when introducing a bill calling for a halt to the regulation of wood-burning stoves, “are an overreach of government and need to be stopped to protect our way of life.” “If we don’t pay attention,” he warned in a recent interview, “we’re going to get run over here.” On that occasion, he wasn’t talking about the danger of ore trucks barreling through downtown Marquette; he was rising to the defense of barbecue grills.

The barbecue resolution Casperson introduced this year with State Senator Phil Pavlov (and which passed the Michigan legislature unanimously) is an unabashed exercise in demagoguery. “Barbecues are an American tradition enjoyed by families from all walks of life across the country,” it begins, “whether tailgating for a football game, hosting a backyard get-together, or just grilling a summer meal, barbecues are a quintessentially American experience and an opportunity to eat and socialize with family and friends.” What prompted this noble defense of American tradition and the quintessentially American experience of barbecue? Of football, get togethers, and families from all walks of life across the country? Nothing much.  

In an EPA-sponsored competition, students at the University of California, Riverside were awarded a grant of $15,000 for proposing “to perform research and develop preventative technology that will reduce fine particulate emissions from residential barbecues.” That’s all there was to it. But those prize-winning students and their particulate emission preventing technology posed enough danger for Casperson — along with Missouri State Senator Eric Schmitt, Richard Hudson of North Carolina, Allen West and others of their ilk — to start hyperventilating about Obama and the EPA “coming after” our backyard barbecues. It looks like a loosely coordinated effort, with all the shills singing from the same sheet.

It’s a common tactic used to stir up popular sentiment against the regulation of polluters: when big pesticide users don’t like a new rule clarifying which waters are protected by the Clean Water Act, the demagogues tell small farmers that even a little ditch on their property will be counted among the “Waters of the US”; when regulators take aim at the fossil-fuel industry, the demagogues make dark predictions about the end of s’mores and campfires.

This is, by the way, the second time the Michigan legislature has fallen for this particular barbecue canard; the last time was back in 1997, when the Michigan House unanimously approved a resolution protecting barbecue grills against over-reaching federal bureaucrats. Casperson’s resolution was a reboot. Back in the 90s, and again in 2014 when Texas Senator Pete Olson demanded the Clean Air Act had to be amended if Texas-style barbecue were to be saved, the phony patriotism around Americans and their barbecue grills was a flag-waving effort to thwart the EPA’s proposal of stricter ozone limits. This time? Maybe rallying the troops around their barbecues helped to galvanize anti-EPA sentiment in the fight against the new Clean Water Act rule, or capitalize on the Pyrrhic victory the Supreme Court handed to industry in Michigan v. EPA.

A watchdog blog notes that Casperson’s “legislative record directly reflects the money trail,” but the equally important point — the one that I want to emphasize here — is that Tom Casperson’s efforts in the Michigan legislature appear to be connected and aligned with other legislative and extra-legislative efforts to ease environmental regulation and advance extractive projects and industrial development. The MCRC complaint presents a sterling opportunity for Casperson to strengthen these connections and forge new alliances. He would be a fool to pass it up.

Clark Hill, the attorneys who prepared and filed the complaint, already support Dan Benishek through their federal PAC; so Casperson may be able to jockey for a position in line behind him. But the law firm also gave more to Michigan Democrats than Republicans, and their real power and political influence does not depend on the nominal contributions they make to various political campaigns. Those are just goodwill gestures. Their political law practice, on the other hand, is a true nexus of political power, and at the head of it sits none other than Charles R. Spies. In 2012, Spies was Chief Financial Officer and Counsel for Restore our Future, the largest super PAC in history, formed to elect the unelectable Mitt Romney. Nowadays, Spies is supporting Jeb Bush, with a new Super PAC called Right to Rise.

These are the big leagues — much bigger than Casperson could ever dream of playing in. But the national success of Right to Rise will depend on thousands of coordinated local and regional efforts. If the MCRC lawsuit continues to go forward, it could easily have a place in that scheme, while raising Casperson’s profile and burnishing his conservative credentials. For its part, Stand U.P. can continue to raise all the money the MCRC needs for its lawsuit and whatever other political projects Tom Casperson and his cronies may be planning, and never have to disclose the sources of those funds. Its 501c4 “public welfare” status affords that protection.

Laudato Si’ on Mining

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.

Love and Plastic

loveorplastic

Someone tossed, or the wind blew, a plastic shopping bag into Grand Army Plaza, and the bag came to rest at the feet of this sandwich board. Since then, the wind has probably carried the bag elsewhere, to other streets or into the trees, where lots of bags like this one get stuck.

Wherever it may have gone, this bag will outlast by far whatever gathering of love and soul the sign in Grand Army Plaza advertised.

Paul reassures us in 1 Corinthians that love will endure — that it will bear the weight of the world and outlast all things, πάντα ὑπομένει; but plastic is perdurable, and takes an awfully long time to disappear. Long after those who may have gathered here are gone, this bag will remain.

Miner’s Almanac

It’s difficult for me to read the grim news of the chemical spill in West Virginia without thinking immediately of my friends in Minnesota. “A 23 year gap in oversight” is now listed among the chief causes of the spill of 4-methylcyclohexane methanol into the Elk River. How, in the wake of this disaster, or in light of any of the other industrial spills and explosions and disasters that seem to be in the news nearly every week, can anyone in Minnesota still seriously entertain the idea that Polymet Mining will maintain water treatment facilities for up to 500 years at its open-pit sulfide mine near Hoyt Lakes?

If Freedom Industries, the Department of Homeland Security and other government entities can’t keep track of one storage tank in West Virginia for less than a quarter century, how are we going to keep track of a toxic site on Lake Superior for five centuries? The whole thing seems so absurd, like a really bad joke, told with a sinister wink and a nod.

As I tried to suggest in a previous post, the debate over Polymet’s 500 year water treatment model projects responsibilities so far out into the future as to render them utterly meaningless, making a farce out of the very idea of oversight or even what in the ugly parlance of the regulator is called “environmental impact.”

But just a couple of weeks ago, in a roundtable on Polymet aired on Twin Cities Public Television’s Almanac program, host Cathy Wurzer dutifully took up her part in the farce, fidgeting with her fancy glasses to indicate that she was being serious and inquiring of her guests whether this “has this been done, this kind of treatment, over this amount of time, has it been done successfully elsewhere?” Really? I half expected someone to remind Wurzer that reverse-osmosis technology wasn’t exactly around in the year 1514. Instead, Kathryn Hoffman, an attorney with the Minnesota Center for Environmental Advocacy, politely answered: “we certainly have no models or examples of successful mitigation over that period of time,” and to her credit she kept a straight face and even managed to cite “over 42 exceedances” of water quality standards at Eagle Mine in Michigan, where water is treated through reverse osmosis – and the mine has not even yet gone into production.

Only later in the program did Becky Rom, of the organization Sustainable Ely, suggest that “it’s not rational to believe” that the facilities Polymet builds today will last “for hundreds of years.” That’s exactly right: it’s completely irrational. In fact, it’s a ridiculous fantasy – or a pathological delusion — to think that Polymet itself will be around fifty or one-hundred or five-hundred years from now, and “always in compliance” as Frank Ongaro, Executive Director of Mining Minnesota declared on the same program.

But that’s only the most egregious falsehood that Polymet and pro-mining groups are asking us to credit.

Pro-mining guests on Almanac were also trying to foist on the public the idea that the mining of copper and nickel at the Polymet site will be no different — – in terms of its potential effects on the land and water — from the mining that has been historically done on Minnesota’s Iron Range. That is patently untrue, but it tugs at the heartstrings and appeals to the nostalgia and pride that the immigrant mining story still inspires: that’s why Polymet has already secured a place for itself in Minnesota mining history on its website, and it’s also why Carly Mellin, who hails from the Iron Range and serves as Assistant Majority Leader of the Minnesota House of Representatives, played the heritage card at the end of the program: “we’ve been mining 132 years on the iron range and we still have an absolutely beautiful region of the state,” she said, in what sounded like a clearly rehearsed closing remark, “and I plan to continue for it to be beautiful after copper-nickel mining.” Lucky for her there was no time for people to press her on what exactly those plans are and how she plans to realize them.

For his part, Frank Ongaro kicked off the entire debate with a misleading statement that cast Polymet’s mining project as a matter of self-sufficiency – a project done in the national interest:

We’re sitting in Minnesota on one of the largest deposits of copper, nickel, platinum metals in the world – metals we’re import-dependent on for everything we use, every day in our life.

Carly Mellin reiterated the point a little while later. There may be some traces here of an earlier argument that proponents of HR 761 tried to advance – claiming that mining near the Boundary Waters was “necessary for U.S. strategic interests.” But here Ongaro is really making a cheaper appeal, to jingoism and state pride, and at first blush, he makes a certain amount of sense. Why import what we have in abundance here? If we have metals or other resources we need, why not use them instead of relying on imported stuff?

The copper and nickel taken out of the Minnesota ground will not stay in Minnesota and be smelted and worked as in the days of yore by hardworking Minnesota craftsmen into sturdy tools and smart technologies that twenty-first Minnesotans can use. Mining copper and nickel on the Iron Range may, in fact, have the unintended effect of exposing the region in new ways to the turbulence of the global commodities marketplace.

Rio Tinto’s play for Michigan copper was never about Michigan; it was part of a bet on continued Chinese growth and urbanization. The price of copper – U.S. copper, Chilean copper, Mongolian copper – rises and falls these days on Chinese demand. Copper and nickel mined on the Iron Range will not make us more self-sufficient or serve the strategic interests of the United States. At best, those minerals may be warehoused here for a while, in New Orleans and in other ports; but they are destined for the international market.

This is the cat Frank Ongaro was desperately trying to keep in the bag when Becky Rom called Polymet “a shell company” for Glencore Xstrata, the Swiss global commodities giant. (With about 35 percent of all shares. Glencore is Polymet’s largest investor.)

Rom: I think you have to understand that Polymet isn’t going to be around at year 20. This is a shell company that’s shielding its major investor —
Ongaro (clapping his hands): That’s not true!
Rom: Glencore, that’s known for corruption, and environmental and labor violations —
Ongaro: Every company that operates in the state of Minnesota –
Rom: and at the end…at the end —
Ongaro: –will have to follow state laws, period.
Rom: –at the end of twenty years when they have done extracting the metals and earning their revenue, all they will have as an asset is a polluted mine site. So…we the taxpayer…will carry…the burden for what is going to be in fact hundreds of years.

Eventually, of course, the truth will out. But with precious little time left in the 90-day public comment period that began on December 14th, it needs to come out now.

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

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

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.

Polluting the Future — A Question of Human Rights

Last week, the organization Earthworks released Polluting The Future, a report focusing on “the staggering amount of our nation’s water supplies that are perpetually polluted by mining” and the “rapidly escalating national dilemma” of perpetual mine management.

Perpetual is the key word here. Forty existing hardrock mines pollute 17-27 billion gallons of water per year, “and will do so in perpetuity,” for hundreds if not thousands of years. Include other mines likely to contribute to the problem, and take into account four new big mining projects currently being proposed, and the number jumps: to 37-47 billion gallons of polluted water every year. Pour that all into 8 oz water bottles and stack them one on top of the other and you can go to the moon and back about 100 times.

When Earthworks adds up the cost of treating this perpetual pollution, the figure is staggering: 62 to 73 billion dollars a year. That’s one very powerful way to talk about the social cost of mining — a cost that the mining companies (many of them foreign-based multinationals) are passing directly to the American public. The EPA “questions the ability of businesses to sustain” treatment and management efforts for the required length of time. That’s putting it mildly. As Earthworks points out, “most corporations have existed for far fewer than 100 years… Mining corporations simply won’t be around to manage water treatment that will continue for thousands of years.” They are passing along the true costs of their operations to all of us, for generations to come.

I was hoping to find some discussion of the proposed mining on Lake Superior. It’s a subject I’ve blogged about before — here and here, for instance — and I’m trying to put together a documentary project on the subject as well. So I was left wondering where the Rio Tinto / Kennecott Eagle Mine and the many other new mining projects around the perimeter of Lake Superior fit in the scheme Earthworks presents here.

It seems largely to be a question of scale. It may be easier for the mind to grasp the horror of open-pit projects with a “high risk for perpetual pollution” due to acid mine drainage, but acid mine drainage is also one risk of the sulfide mining projects about to be staged in and around the watershed of one of the world’s largest freshwater lakes — Lake Superior. Again, the report singles out the Pebble Mine in Alaska, another Rio Tinto project, to talk about the threat that mine poses to “the nation’s largest wild salmon fishery”; but the new mining in Michigan’s Upper Peninsula threatens the natural habitat of the coaster brook trout, the Salmon Trout River in northern Marquette County. So there are a couple of ways to make connections between the mining around Lake Superior and Polluting the Future.

Then there are the policy recommendations in this report — which range from enforcement of the Clean Water Act to other legislative and regulatory changes to hold companies accountable. Those all deserve careful consideration. What’s missing for me is something that came out of another report issued last week, this one by the United Nations Office of the High Commissioner for Human Rights. At the end of a ten day mission to assess the state of business and human rights in the United States, the UN delegation “noted the allegations of significant human rights impacts of surface mining, particularly the rights to health and water, and the deep divisions between stakeholders on the most effective ways of assessing and addressing the impacts.” (Significantly, for those who have followed the controversy over the Eagle Mine project, the UN team also looked at “the rights of Native Americans, particularly as regards the lack of free, prior and informed consent for projects affecting them and sites of cultural and religious significance to them.”)

So I would like to talk about the Earthworks report in this human rights context. The discussion might start with the very first sentence of the report, which characterizes water as “a scarce and precious asset.” The word “asset” makes me a little uneasy (but I would have to defer on this to people like Jeremy J. Schmidt, who together with Dan Shrubsole just put out a paper on the ethics and the politics entailed in the words we use about water). Think, for a moment, about how this discussion of perpetual pollution for immediate profit might be reframed as a human rights discussion. Or at least how the two perspectives — the environmental perspective and the human rights perspective — are complementary, and more powerful when taken together. The problem isn’t just that freshwater is a precious asset in increasingly high demand and short supply; it’s that when we permit big mining projects to pollute our water for generations to come, we are also failing to protect the human rights of our children and our children’s children, and so on, in perpetuity.