Updated: Jul 13, 2020
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Recently the Court of Appeals of Minnesota partially reversed the Minnesota Pollution Control Agency’s (MPCA) determination that an environmental impact statement (EIS) for a proposed dairy expansion was not needed. During the public comment period, the Minnesota Center for Environmental Advocacy (MCEA) raised concerns that the MPCA had not addressed either climate change or the greenhouse gas emissions from the expansion, and said the MPCA should develop an EIS before approving the expansion. The court of appeals agreed with the MCEA, and now the MPCA must conduct an additional environmental review before approving the expansion and the National Pollutant Discharge Elimination System permit (NPDES) modifications. This ruling has raised a concern that other states may see similar challenges.
Daley Farms is a Minnesota dairy seeking to expand its operation. The dairy applied to the MPCA to significantly modify its NPDES feedlot permit. As a part of this, the MPCA had to comply with the Minnesota Environmental Protection Act (MEPA). Because of the size of the expansion, the MPCA had to conduct a MEPA-required environmental review and complete an environmental assessment worksheet (EAW).
MCPA made a draft EAW available for public comment, and MCEA made comments that the EAW did not take into account possible climate change and greenhouse gas emissions from the proposed dairy expansion. Because of their concerns, MCEA requested that MPCA conduct an EIS before approving the project. The MPCA denied this request, but never addressed the climate change and greenhouse gas emissions of the proposed project. MCEA appealed that decision.
Looking at the appeal, I’m focusing on the decision related to the need for an EIS. On appeal, the MCEA argued that the MPCA failed to take into account both the effects of greenhouse gas emissions and as well as an entire category of environmental impacts in denying the need for an EIS and approving the NPDES modifications.
In Minnesota, the MEPA lays out two levels of environment effects assessment. The first is an EAW, which is a brief document allowing an agency such as the MPCA to determine if a proposed project requires an EIS. An EIS is a more analytical document that looks at the proposed project in detail and analyzes any significant environmental impacts, considers possible alternatives to the proposed action and the effects of other options, and examines methods to mitigate potential environmental impacts of the proposed action.
In this case, the MPCA used a worksheet designed for feedlots for the EAW, but the worksheet did not consider greenhouse gas emissions and did not require the dairy to provide information on greenhouse gas emissions. During the EAW comments period, MCEA raised concerns that the EAW contained no analysis of greenhouse gas emissions. The MPCA addressed these comments by saying the agency was not required to provide such an analysis.
The court of appeals agreed with the MCEA that the MPCA was not limited to requirements on the EAW. MCEA raised the issue of potential significant environmental effects during the comment period, saying the MPCA should have addressed those environmental effects. The court acknowledged that accounting for possible environmental impacts of greenhouse gas emissions from a dairy would not be easy, but that the MPCA needed to do so nonetheless.
The court reversed the order denying an EIS because the MPCA failed to consider the greenhouse gas emissions’ impact of the dairy expansion. Because the incomplete analysis was used to approve the NPDES permit modifications, the court also reversed the decision granting the NPDES permit modifications.
This decision shows the impact that an agency skipping a necessary process before granting a permit can have on not only farms but other regulated businesses. By failing to address a concern raised in the comment period, the agency and the farm must go back and complete the permitting process. The agency may still approve the order denying an EIS and approving the NPDES permit modifications. Still, the agency must take into account all concerns raised in the public comment process.
This case might have had a different outcome in another state. Many states do not have a law like Minnesota which mirrors the National Environmental Protection Act requirement that an agency do an environmental review before proceeding with an action. Without the MEPA, the MPCA may not have needed to consider greenhouse gas emissions before approving the NPDES permit modifications. What state agencies will need to consider will be something that depends on the laws in that state.
Although this decision requires the agency and dairy to go back and address the issues raised by the MCEA, this might not be the final word on this case. The MPCA may still appeal. At the same time, even if the MPCA goes back and takes into account greenhouse gas emissions, the MCEA may again appeal that decision as well. We will have to monitor this decision to see how it proceeds.
Matter of Denial of a Contested Case Hearing Request & Modification of a Notice of Coverage Under Individual Nat’l Pollution Discharge Elimination Sys. Feedlot Permit No. MN0067652, No. A19-0207, 2019 WL 5106666 (Minn. Ct. App. Oct. 14, 2019).