Tag Archives: Water

Mozambique, Michigan, and the SEC Complaint Against Rio Tinto

Chinde_Rusting_boats

Rusting boats at the port of Chinde, where Rio Tinto proposed to barge Riversdale coal via the Zambezi River.

Yesterday, the Securities and Exchange Commission brought a complaint in New York City against Rio Tinto, charging Tom Albanese, the former CEO of Rio Tinto, and Guy Elliott, his Chief Financial Officer, with fraud. According to the complaint, Albanese and Elliott actively misled the Rio Tinto board, audit committee, auditors, and the investing public about their acquisition of the Riversdale coal business in Mozambique in 2011.

The fraud that Albanese and Elliott are accused of perpetrating looks awfully familiar to those who have followed the development of Eagle Mine and the controversy over County Road 595. Having noticed the parallel between Mozambique and Michigan back in 2013, when Tom Albanese was forced to step down, I now have to wonder whether prosecutors will take the company’s representations around the Eagle Mine into account when building their case.

In Mozambique, they told investors, coal would be transported by barge to the Indian Ocean port of Chinde. Although their technical advisors “highlighted the ‘showstopping’ risks” associated with the barging proposals before the acquisition, Albanese and Elliott blundered recklessly ahead. Then eight months later, the Mozambique government denied Rio Tinto a permit to transport the coal by barge down the Zambezi River. Suddenly, the coal business they had acquired for $3.7 billion appeared to be worth a negative $680 million. According to the SEC’s complaint, Albanese and Elliott “concealed and glossed over” the fact that they had no viable haul route for the 30 million tons per year they projected in their business plans, and misled investors as they raised $5.5 billion in US debt offerings.

In that very same period, Rio Tinto was also promoting Eagle Mine to investors and promising economic renewal in the Upper Peninsula, though they had not yet secured a transportation route — a haul route — for Eagle’s sulfide ore. In Michigan, it appears, the company took the same cavalier attitude toward planning and risk that the SEC complaint says got them into trouble in Mozambique.

Way back in 2005, John Cherry, who was then a Kennecott Minerals project manager and is now President and CEO of the Polymet project in Minnesota, characterized Eagle as a “direct ship” operation, “meaning that the rock would not be processed on site, thereby avoiding the storage of highly toxic debris left over, called tailings.” Presumably this is what Michigan DEQ’s Robert McCann had in mind in 2007, when he told The Blade that Kennecott’s permit “would require them to keep the ores underground, put them in covered rail cars, and ship them to Ontario for processing”; the Marquette Monthly told roughly the same story that year, only now there were trucks in the picture: “ore would be transported by truck and rail to a processing site in Ontario.” This seems to have been nothing more than a cover story.

Everything changed in 2008, when Rio Tinto bought the Humboldt Mill. Those permit requirements the DEQ’s McCann touted back in 2005? They were quickly abandoned. Covered rail cars come into the picture only after the ore is crushed, ground into a slurry, floated and rendered into concentrate at Humboldt Mill. A glossy 2010 company publication promoting Eagle Mine includes not a single word about how Rio Tinto and Kennecott plan to travel the 30 kilometers from mine to mill: “Happily, processing of the nickel and copper can take place in Humboldt, around 30 kilometres [sic] away, at a previously abandoned iron ore plant.” By 2011, the company had “considered more than a half dozen transportation routes” from mine to mill, according to a Marquette Mining Journal article by John Pepin published in February of that year, but they still had no viable haul route.

A good prosecutor with a rigorous and thorough discovery process would probably be able to determine whether the evasions and misrepresentations perpetuated on the public over the Eagle Mine haul route also amounted to fraud, or were part of a larger pattern of deliberately misleading statements. It’s clear Rio Tinto never came clean — and perhaps never really had a firm plan — on mine to mill transport at Eagle before it sold the works to Lundin Mining in June of 2013 and decamped. As long as regulators in Michigan continued to be more accommodating than those in Mozambique, the company seems to have been content to let the people of Marquette County fight out the haul route issue among themselves.

A Note on Stone’s “Should Trees Have Standing?”

A report in the New York Times the other day about the Federal District Court case naming the Colorado River as plaintiff led me to Christopher D. Stone’s 1972 Southern California Law Review article, “Should Trees Have Standing?” Justice Douglas drew on Stone’s arguments to formulate his dissent in Sierra Club v. Morton, and since that time the essay has been widely influential, a classic that helped define a field.

For Stone, a river or a lake, a mountain or a forest, a species or the biosphere can have roughly the same status as other “legal incompetents.” A human guardian or, as we might say nowadays, a protector brings a complaint for a natural entity that has suffered some injury. The case is brought “at the behest of” the river or mountain, without having first to prove injury to the guardian or some third party (e.g., a fishing guide whose business has suffered as the result of stream pollution); and the natural entity itself would be the beneficiary of an award or remedy ordered by the court. So, for instance, a judgment against those who have polluted a stream might direct them to undo the damage done to its waters, mitigate erosion of its banks and depletion of its plant life, restock its fish, and so on. The stream would have a “right” to be made whole again.

Stone recognizes that his proposal “is bound to sound odd or frightening of laughable,” but that, he notes, has been true of any movement to confer rights on rightless “things”:

There will be resistance to giving the thing “rights” until it can be seen and valued for itself; yet it is hard to see it and value it for itself until we can bring ourselves to give it “rights” — which is almost inevitably going to sound inconceivable to a large group of people.

Stone’s thinking can seem way ahead of its time — and ours (even if the writing here is sometimes redolent of Southern California in the early 1970s). This is especially true toward the end of the piece, where Stone moves from making strictly jural arguments for the standing of rivers, trees, and other natural entities to broader observations about the “shift from the view that nature exists for men”:

…the time is already upon us when we may have to consider subordinating some human claims to those of the environment per se. Consider, for example, the disputes over protecting wilderness areas from development that would make them accessible to greater numbers of people. I myself feel disingenuous rationalizing the environmental protectionist’s position in terms of a utilitarian calculus, even one that takes future generations into account, and plays fast and loose with its definition of “good.” Those who favor development have the stronger argument — they at least hold the protectionist to a standstill — from the point of advancing the greatest good of the greatest number of people. And the same is true regarding arguments to preserve useless species of animals, as in [the case of sea urchins endangered by a nuclear power plant.] One can say that we never know what is going to prove useful at some future time. In order to protect ourselves, therefore, we ought to be conservative now in our treatment of nature. I agree. But when conservationists argue this way to the exclusion of other arguments, or find themselves speaking in terms of “recreational interests” so continuously as to play up to, and reinforce, homocentrist perspectives, there is something sad about the spectacle. One feels that the arguments lack even their proponent’s convictions. I expect they want to say something less egotistic and more emphatic but the prevailing and sanctioned modes of explanation in our society are not quite ready for it. In this vein, there must have been abolitonists who put their case in terms of getting more work out of the Blacks. Holdsworth says of the early English Jew that while he was “regarded as a species of res nullius … [H]e was valuable for his acquisitive capacity; and for that reason the crown took him under its protection.” (Even today, businessmen are put in the position of insisting that their decent but probably profitless acts will “help our company’s reputation and be good for profits.”)

For my part, I would prefer a frank avowal that even making adjustments for esthetic improvements, what I am proposing is going to cost “us,” i.e., reduce our standard of living as measured in terms of our present values.

We may still not be “ready for it,” as Stone puts it; and, he goes on to say, there might be a more “fundamental problem” with asking human beings to put their own immediate self-interest aside and act on ethical principle, or to limit our rights in order to respect the rights of others:

Insofar as the proposal is not just an elaborate legal fiction, but really comes down in the last analysis to a compromise of our interests for theirs, why should we adopt it? “What is in it for ‘us’?”

This is a question I am prepared to answer, but only after permitting myself some observations about how odd the question is. It asks for me to justify my position in the very anthropocentric hedonist terms that I am proposing we modify. One is inclined to respond by a counter: “couldn’t you (as a white) raise the same questions about compromising your preferred rights status with Blacks?”; or “couldn’t you (as a man) raise the same question about compromising your preferred rights status with women?” Such counters, unfortunately, seem no more responsive than the question itself. (They have a nagging ring of “yours too” about them.) What the exchange actually points up is a fundamental problem regarding the nature of philosophical argument. Recall that Socrates, whom we remember as an opponent of hedonistic thought, confutes Thrasymachus by arguing that immorality makes one miserably unhappy! Kant, whose moral philosophy was based upon the categorical imperative (“Woe to him who creeps through the serpent windings of Utilitarianism”) finds himself justifying, e.g., promise keeping and truth telling, on the most prudential-one might almost say, commercial-grounds. This “philosophic irony” (as Professor [S. Morris] Engel calls it) may owe to there being something unique about ethical argument. “Ethics cannot be put into words”, Wittgenstein puts it; such matters “make themselves manifest.” On the other hand, perhaps the truth is that in any argument which aims at persuading a human being to action (on ethical or any other bases), “logic” is only an instrument for illuminating positions, at best, and in the last analysis it is psycho-logical [sic] appeals to the listener’s self-interest that hold sway, however ”principled” the rhetoric may be.

That logic may have its limits and ethical argument its attendant ironies should not deter us. “The strongest case can be made from the perspective of human advantage,” Stone writes; and after reviewing that case, he goes on to suggest that protecting the environment will actually raise our standard of living, if not in terms of our present values, then (this point deserves emphasis) in terms of new and more durable values.

Stone is even prepared to argue that “a radical new conception of man’s relationship to the rest of nature would not only be a step towards solving the material planetary problems” (and the problems Stone identifies here, in 1972, are still very much with us and more urgent than ever before: melting polar ice caps, dying oceans, serious threats to water). “There are strong reasons for such a changed consciousness [Stone admits that he is uncomfortable with the term] from the point of making us far better humans.” Recognizing the rights of those whose standing once seemed “unthinkable,” to borrow Stone’s phrase, surely has.

A Highland Map of Lake Superior Mining

It would be instructive to lay this map, published today by Highland Copper, over the map of Mines, Mineral Exploration, and Mineral Leasing around Lake Superior published in 2013 by the Great Lakes Indian Fish and Wildlife Commission.

Having acquired all of Rio Tinto’s exploration properties in Michigan’s Upper Peninsula, Highland now dominates sulfide-mining exploration in the UP.

A multi-billion dollar mining behemoth like Rio Tinto could arguably have left these copper, zinc and gold sites idle for a rainy day. The same can’t be said about a junior like Highland. With market capitalization of $62 million, the company paid $2 million at closing, leaving its subsidiary on the hook for an additional $16 million (in the form of a non-interest bearing promissory note), to be paid in regular installments.

According to company’s own press release, “the payments…will be accelerated if Highland publicly releases a feasibility study covering any portion of the UPX properties.” So once exploration begins with test drilling in 2018, we might see efforts to expedite permitting and development for these sites.

If UPX succeeds in taking even a fraction of these sulfide-mineral deposits from exploration to development, and if these new mines are developed under the pressure of an accelerated payment schedule, the risk to the Lake Superior watershed will be significantly heightened.

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.

Update, 17 October 2017: Oral argument is now scheduled for Tuesday, 5 December, before a three-judge panel of the Sixth Circuit Court of Appeals. In a 15 October Detroit News op-ed, Pacific Legal Foundation attorney Mark Miller argues EPA should “immediately” retreat, to deliver on Trump’s campaign promises and “send a signal to the EPA bureaucrats.” It would appear that the Marquette County Road Commission is being enlisted in what a recent episode of Frontline calls the “War on the EPA” and the larger political project to dismantle the administrative state.

Three Questions for the Michigan DEQ on the Back Forty Project

Earlier this month, the Michigan Department of Environmental Quality announced its intention to permit the Back Forty Project, an open-pit gold and zinc sulfide ore mine that Aquila Resources, a Canadian company, plans to develop near the headwaters of the Menominee River. In response to the MDEQ’s request for public comment by November 3rd, I’ve submitted these three questions. I’m posting them here so that others might consider them in the run up to the public meeting with the MDEQ in Stephenson, Michigan on October 6th.

  1. In determining that the Back Forty Project application meets the requirements for approval under Part 632, did MDEQ take into account the cumulative effects of sulfide mining throughout the Lake Superior watershed? We know that the Back Forty project poses a significant risk to the Menominee River all by itself. With the mine in close proximity to the river, a flood, berm collapse, subsidence or a slide could destroy the Menominee River; to answer these serious concerns by asking the company to add a “synthetic, manmade liner under their waste/tailing rock facility,” as the DEQ has proposed, is to trivialize them. Other development that the mine will inevitably bring, including haul routes, power lines, lights, fueling stations, exhaust and machine noise, will leave a large industrial footprint and disturb the Menominee River and its environs in countless ways. At the same time, this mine will heighten the risk, in the long term, of large-scale environmental destruction posed by the resurgence of sulfide mining not just in Michigan’s Upper Peninsula, but in Minnesota and Canada as well — all around the lake and throughout the Lake Superior watershed. Has the DEQ completed or participated with neighboring state agencies and tribal authorities in a scientific study of the cumulative impacts of sulfide mining around Lake Superior? Has the DEQ issued guidance on how cumulative environmental effects should factor into its decision-making process for permitting new mines in Michigan?
  2. Has MDEQ made any determination about the human rights implications of its decision to allow the Back Forty project to go forward? Human rights are not outside the DEQ’s bailiwick, no matter how hard it may try to exempt itself. Witness Flint. In the present case, the DEQ’s oversight is inextricably bound up with the state’s obligation to protect human rights abuses by third parties. Aquila’s Back Forty project is sure to disturb, and likely to desecrate, lands traditionally belonging to the Menominee and still held sacred by them; and making provisions for archaeological recovery and preservation of mounds and other sacred sites does not adequately address the basic human rights issues involved here. The headwaters of the Menominee River are central to the tribe’s creation story, marking the place where the Menominee people originated. Their very name derives from manoomin, or wild rice, which will not survive changes in sulfate levels or degradation of overall water quality. As tribal member Guy Reiter has said, “It’s no different than if an open-pit sulfide mine was put in Bethlehem for the Christians.” Seen from this perspective, the Back Forty is not only an affront to Menominee history; it also puts the cultural survival of the Menominee people at risk. How will the DEQ factor such human rights considerations into its decision-making process?
  3. What has the DEQ done to restore trust in its authority, and reassure the Menominee and people living downstream from the Back Forty project in Michigan and Wisconsin that it will exercise appropriate care? The Flint water crisis cast a long shadow, and reinforced the perception that “politics and poverty are big factors” in DEQ decision making. “The same attitude of disregard for citizens and the environment has repeated itself in DEQ decisions across our state for well over a decade,” said Marquette attorney Michelle Halley after news of the Flint water crisis broke; controversy over the renewed Groundwater Discharge Permit issued by MDEQ at Eagle Mine and legitimate concerns about lax oversight at Eagle East help make her case. Like all government agencies, the Michigan DEQ should operate in sunlight. Already, however, troubling questions have been raised about the transparency of the Back Forty permitting process. For example, Al Gedicks, Executive Secretary of the Wisconsin Resources Protection Council, asks why the DEQ appears to be in a “rush” to grant the Back Forty permit. So as things now stand, the DEQ enjoys de jure authority in Michigan under Part 632, but it is unclear whether the DEQ still enjoys de facto authority, which could only derive from demonstrations of regulatory competence. How does MDEQ intend to quell public concern that it is compromised or incompetent, and reassure the public that it is a responsible steward?

The Political Project Continues, Even if the Case is Dismissed

Earlier this week, the EPA filed its Brief in Opposition to the Motion to Alter or Amend Judgment in Marquette County Road Commission v. EPA, requesting that Judge Robert Holmes Bell stick with his dismissal of the case. Just a day later, State Senator Tom Casperson, chief political architect of the MCRC lawsuit, was defeated by Jack Bergman in his primary bid to run against Lon Johnson for Dan Benishek’s seat in the U.S. House of Representatives.

Prospects for the haul road are dimmer than ever, reduced to a fine point of administrative law — namely, whether EPA’s objections constitute “final agency action” or are merely “an interlocutory step” that continues the administrative process. (If the latter, the case remains dismissed.) In the likely event of the lawsuit’s failure, Stand UP, the dark money organization funding it, might fold or it might try to convert itself to other political purposes. As a 501(c)(4) it can legally do that, as long as it continues to satisfy the vague requirements of a “social welfare” organization.

Casperson still has two years left to serve as a Michigan State Senator; and while he was unable to translate gripes about federal overreach into victory on a bigger political stage (to hear him tell it, people below the Mackinac Bridge just don’t get it), Bergman, the Republican candidate, seems just as hostile to effective environmental regulation. He is, for instance, an advocate of the REINS Act (S. 226 and H.R. 427), a cynically designed piece of polluter-friendly legislation that aims to undermine rules like the Clean Water Act and allow politicians and lobbyists to second-guess science. So it’s important to remember that the Road Commission’s lawsuit over the haul road has always been bound up with a larger, coordinated political project, and that project will continue well after the judge considers the last brief in this case.

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.

Save the Wild UP December Gala Keynote Address

This is the text I prepared for my remarks at the Save The Wild UP December Gala. My talk deals with the ethics of Lake Superior mining, connecting it with climate change, the loss of the wild and the dawn of the Anthropocene. It’s also a reflection on human ingenuity and human responsibility. The half-hour keynote makes for a long blog post, but I hope readers will find something here worth sharing and discussing.  

1

When you invited me to speak tonight, I tried almost immediately to come up with names of people who might be better suited to the task. In this crowd, I ought to be listening and trying to catch up.

I’m an outsider, and a latecomer to boot. Some of you were here when Kennecott and Rio Tinto first staked their claim to the Yellow Dog Plains. I didn’t fully appreciate the extent of the new mining activity in this area and all around Lake Superior until about 2012. That was right after Ken Ross and I had finished making 1913 Massacre, our documentary about the Italian Hall disaster.

I was so caught up in the story our film tells that I was under the impression that copper mining — sulfide mining — was a thing of the past in the Upper Peninsula.

Very near the end of 1913 Massacre, there’s an interview with an Army veteran who’s sitting at the counter of the Evergreen Diner, drinking a coffee and smoking a cigarette. He says that after the copper mines closed in 1968, attempts to re-open them failed because people were “bitching about the environment and all that shit and the water and the runoff.” The camera, meanwhile, is exploring the industrial damage left behind by the mining operation.

This is the one moment in the film where we had to bleep out some bad language before Minnesota Public Television would air 1913 Massacre on Labor Day in 2013. The only time anyone in our film curses is when the subject turns to protecting the water and the environment.

That these two things — a destroyed, toxic landscape and a hostility toward people who care about the environment — exist side by side; that people can watch a mining company leave a place in ruins, poison its waters, damage it to the point that it’s now a Superfund site, with high levels of stomach cancer and fish that can’t be eaten, and direct their anger and curses at people trying to prevent it from happening again: our film presents all that as part of what we’ve come to call “mining’s toxic legacy.”

The Army veteran went on to say — this part didn’t make it into the film — that people who bitch about the environment are “people from out of town.” He wasn’t complaining about environmental regulation or about big government; he was complaining instead about out-of-towners, strangers who make it tough for regular guys to make a living.

Strangers can be people from faraway, or just people from whom you feel estranged: people who don’t share your ways or speak your language; and it would be possible to talk at some length about the way the mining operations in the Keweenaw estranged people from each other and from the place they live.

Everywhere it goes, it seems, mining divides and displaces people. It’s never just about extracting ore from the ground. Mining is development and the power to direct it.

When strangers come to town or when people feel estranged, we need translators, guides and mediators. This is one reason why it’s so important to have a local, grassroots organization dedicated to the shared interests people have in the nature and culture of the Upper Peninsula.

You might look like the underdog right now. But I think you’ll agree that there’s a pressing need for a more responsible, inclusive and respectful conversation about development in this place. Save the Wild UP is in a great position to lead it.

2

Back home in Brooklyn, I have a fig tree. I planted it last spring. I just finished wrapping it for the winter. I love the work the fig tree involves — the care it involves — because it connects me to the memory of my grandfather and the fig tree he kept. My tree connects me to my family tree (my roots), to history, and in my imagination the tree belongs as much to history as it does to nature. The life of my tree depends almost entirely on my care. I sometimes wonder if there is anything wild about it.

There is a wild fig. The ancient Greeks even had a special word for it: φήληξ. They seem to have derived its name from another word (φῆλος) meaning “deceitful,” because the wild fig seemed ripe when it was not really so. The ancient world knew that wildness is tricky. It can deceive and elude us, or challenge our powers of discernment.

Nature, we claim, is our dominion, as if it (naturally, somehow) belonged to history, the world of human activity. Our economy organizes nature to produce natural resources. But the wild represents a living world apart from history and another order of value altogether.

We can’t assimilate the wild into an engineered and technical environment: it will cease to be wild the instant we try. The wild begins where engineering and ingenuity stop, at the limits of human authority and command. So “wild” is sometimes used to mean beyond the reach of authority, out of control.

But what’s wild is not alien. Sometimes the wild calls out to us, usually to ward us off. The wild is almost always in flight from us, leaving tracks and traces for us to read. It always responds to us, as wild rice and stoneflies respond to the slightest change in water quality, offering guidance if we are attentive and humble enough to take it.

The wild marks the limits of our powers, our ingenuity and ambition, and before it we ought to go gently.

We have not.

The headlines tell us that our carbon-intensive civilization, which brought us so many material advantages, is now hastening its own demise. We are entering an entirely new era of human life on earth. Some scientists and philosophers talk about the end of the Holocene and the beginning of the Anthropocene — the dawn of a new geological epoch of our making.

The story beneath the headlines is a record of loss. A map of the terrestrial biosphere shows that today only a quarter remains “wild” — that is, “without human settlements or substantial land use” — and even less is in a semi-natural state. Data from the Mauna Loa Observatory tell us that this year was the last time “anyone now alive on planet Earth will ever see” CO2 concentrations lower than 400 parts per million. Those levels started rising in the 1700s with the industrial revolution, spiked dramatically in the postwar period and have climbed steadily higher. Since 1970, the populations of vertebrate animals have dropped by 52 percent. The same report by the World Wildlife Fund tells us that freshwater animal species have declined by 76 percent since 1970.

That precipitous drop in freshwater species should set off alarm bells, especially here, on the shores of one of the largest freshwater lakes in the world. Since the 1970s, Lake Superior surface-water temperatures have risen and ice cover has dramatically reduced. Walleye can now live in more areas of the lake than ever before. There’s an earlier onset of summer stratification. By mid-century, according to the National Wildlife Federation, Lake Superior may be mostly ice-free in a typical winter.

Now I know it’s the holiday season and these aren’t exactly tidings of comfort and joy, but they are tidings all the same. And what they announce is this: we are responsible. We’re responsible for all this destruction of the wild — of the whole web of life — and for the changes sweeping over us. Denial will not let us off the hook.

Responsibility is not just about being held accountable for the damage you’ve done; it’s also about taking steps to limit damage, repair the broken world, reclaim it and make things better. We have that responsibility to ourselves and to future generations.

“Loss belongs to history,” writes the political philosopher Sheldon Wolin, “while politics and life are about what is still to be done.” But, he’s careful to remind us, loss still has a strong claim on the way we live now and on our future plans. The loss of the wild gives us a new responsibility that should inform our politics and our lives at every turn, direct the investments we make and the activities we sanction, and give rise to new conversations about what to do.

Saving the wild is now bound up, inextricably, with saving the human world — for ourselves and for future generations. We can appreciate in a new way Thoreau’s famous statement: “in wildness is the preservation of the world.”

3

Knowing all this, why don’t we act? Why haven’t we acted?

One answer to this question has to do with the word “we,” and our underdeveloped capacity for coordinated, collective action.

Mark Carney, Governor of the Bank of England, suggested another good answer in a speech he gave back in September to a group of insurance industry executives. Not exactly a bunch of tree huggers, but actuaries, people interested in accounting for risks and costs.

Carney talked about the future in terms of horizons, near versus long term. When we focus only on the near term, we don’t account for the true cost of our activities. That’s why for Carney, climate change is a “tragedy of the horizon,” or the tragic consequence of our inability to see and plan and take steps beyond the near term. Since “the catastrophic effects of climate change will be felt beyond our immediate horizons” — beyond the business cycle and the quarterly earnings reports, beyond the political cycle and the current election — we have deferred the cost of fixing the problem to future generations.

We’ve organized things — markets, politics, institutions — so that near-term interests win out over longer-term well-being and more sustainable arrangements.

Nowadays, if you look out at the Lake Superior horizon, you might see all the way to China. An unsustainable scheme of Chinese urbanization and economic growth fueled much of the new mining activity around the lake, and especially the exploration and exploitation of copper-rich deposits. Over the last decade or so, copper was used not just to build and wire new Chinese cities, many of which today stand empty; it was used mainly for collateral on loans. As much as 80 percent of the copper China imported was used to back loans. Today, as China unravels and the price of copper plunges, commodities investors are expressing remorse. Nickel’s down, too. The rush for Lake Superior minerals now seems to have been reckless — part of a larger market failure, with unforeseen risks and costs current and future generations are likely to incur.

Or look at the Polymet project in Minnesota. It’s an exaggerated case of not accounting for the long-term costs of mining. Currently, the Polymet Environmental Impact Statement says that water treatment will go on “indefinitely” at a cost of 3-6 million dollars a year. There is no way, so far as I know, to multiply 3 or 6 million dollars by a factor of indefinitely; and even the company’s most concrete prediction is 500 years of water treatment. Just to put that in perspective, the state of Minnesota has only been around since 1858: 157 years.

How is it possible that a proposal like this can be taken seriously? They promise jobs, a fix to a near-term problem; but there’s something else at work here as well: technology or, rather, misplaced faith in technology and human ingenuity. We make technology a proxy for human responsibility.

But technological advances that create efficiencies or solve problems for mining companies can carry hidden social and environmental costs: for example, a study done after the Mount Polley spill last year concludes that “new technologies, deployed in the absence of robust regulation” have fostered a “disturbing trend of more severe tailings failures.” Recent events in Brazil underline the point.

Great machinery, even full automation, will never amount to responsible stewardship. New technologies can have unintended consequences, distancing us from each other and from our responsibilities. Things corrode, repairs are made or not, entities dissolve, contracts are broken, obligations are forgotten, empires decline and fall, even within definite time horizons.

The industrial development that mining brings distorts horizons in another way. One theme of Tom Power’s research on the economics of the Lake Superior region and on what he calls wilderness economics is that “protecting the quality of the living environment…lays the base for future, diversified economic development.” Over-reliance on mining — and mining that damages or threatens the living environment — hinders economic diversification and makes the economy less resilient. It also requires us to discount the value of water and land it puts at risk, a value that is only going to increase over the long term, as freshwater becomes ever more scarce and as carbon capture afforded by peatlands and forests becomes more critical.

To allow that calculation for the nonce is not to concede that the market value of these wild places is their true value. The living world, creation and generation, is more than a bundle of ecosystem services, a tap and a sink for human activity. That way of thinking won’t save the wild; it is bound to open the door to the very forces that have already destroyed so much of it.

4

Let’s not lose sight of the larger point: if you take the long view, looking forward into the future and out across the horizon, protecting the land and water in this region actually looks like a more attractive investment than extracting all the ore from the ground.

That makes the capture of government by mining and extractive industry — from Marquette County to the state and federal levels — all the more troubling and deplorable. It directs investment and development down these risky and unsustainable paths, where short-term interests of multinational corporate actors are paramount and enjoy the full protection of law. The coercive power of the state, which ought to place constraints on corporate actors, is used mainly to benefit them. When things go south, society ends up bearing the cost.

This grassroots effort challenges that whole topsy-turvy arrangement. We have to continue to challenge it, at every opportunity, in every forum, recognizing that the results we’re looking for probably aren’t going to come on a quarterly basis or anytime soon. We have to lengthen our horizons.

At the same time, we have to re-open the conversation about how we are going to organize ourselves in this place, so that what remains of the wild UP can flourish and the people living here can thrive.

It’s imperative, too, that Save the Wild UP stay connected with other groups around the lake facing similar challenges. To take just one example: Kathleen’s recent Op Ed in the Star Tribune about Governor Dayton’s visit to the Eagle Mine. That made a difference to people in Minnesota: it was widely shared and talked about. People connected with it.

I have to believe that there’s power even in these little connections — and in conversation, cooperation and community. There is power where we come together, when we are no longer strangers and no longer estranged from each other. There would be power in an international congress where people from all around Lake Superior gathered to talk about responsible development. This isn’t the power the mining companies and the state can wield; it’s another kind of power, coordinated, collective, non-coercive, one we as a society have not done enough to realize.

We’re going to need that power to meet this current set of challenges.

Now you may have noticed that I keep using the word “we,” and I’m conscious that by including myself here I might be overstepping and intruding. But maybe that’s why I keep coming back to the UP: deep down, I know this is not a faraway or a strange place but a familiar place, where I have a stake in things — where we all have a stake.

The “wild UP” that we are organized to save is not just wilderness, waterfalls, wolves and warblers. It is the stage of humanity’s tragic predicament. It marks a boundary that we cross at our great peril. It can be a vital source of economic and social renewal.

Ultimately, saving the wild UP is about realizing the power and political authority we all have, everyone in this room, people across the UP and around the lake, to govern ourselves and make decisions about the future we want. What do we see on the horizon? What do we want for our children, grandchildren, our great-grandchildren and so on down the line? What do future generations require of us? What do we owe them?

That’s a conversation we need to keep having. And that’s why this organization deserves all the support we can give it, because Save the Wild UP connects us and shows us that we can be both powerful and responsible at the same time.

Thanks for listening so patiently, and thanks again for inviting me to the Gala.

delivered 5 December 2015

Two Upcoming Events In Marquette, Michigan

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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.

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