An Agate original

A conversation with Scott Strand, Executive Director of the Minnesota Center for Environmental Advocacy.

Agate: To what extent are environmental concerns actually addressed in preparation of an EIS (Environmental Impact Statement)? They are so expensive, they take a long time, there’s a lot of paper involved, do they really do what people think they do?

Strand: Environmental Impact Statements can do a lot. We don’t do very many, in Minnesota. We maybe do about ten a year, statewide—big projects like a new copper mine or a new light rail line require environmental impact statements. The law says that they are supposed to do a pretty comprehensive review of environmental impacts but also economic, social and cultural impacts; and if they see an adverse impact, that they’ll identify alternatives or they’ll identify mitigation measures, things that we can do to limit the problem.

There are two problems with that, though. One, is that, if you’ve already made the decision that you want to do the project, there’s always going to be the question of how deep your analysis of the environmental impacts is going to be. Too often, the decision to proceed is where you start, and then doing the Environmental Impact Statement is about checking a box and making sure you’re not challenged in court, which is not giving full credit or credence to that process. The other part of it is, even if you do identify better alternatives, or you identify mitigation measure that you can take to reduce the environmental impact, that doesn’t mean it gets done. Environmental Impact Statements are, for the most part, informational documents. If those mitigation requirements don’t make it into permit conditions, if they don’t become part of the contract, essentially, between the government or the involved private parties and the developer, they won’t happen. Even when they are in permits, they don’t always happen. So, being able to make sure that those things that are identified as ways to reduce the adverse environmental impact actually happen, actually are required, are monitored and we ensure they are working, isn’t a given, you have to follow up all the way through.

So there are limits: one, you have to take it seriously, and second, they’ve got to take what they find out and put it into the rules, or else it’s not going to have any impact at all, then it’s just an unnecessary expenditure.

Agate: The general public often thinks of an EIS as one of the steps in the process where they determine whether or not project will go forward, because one of the alternatives to be considered in an EIS is supposed to be the ‘no build’ alternative, evaluating the impacts and outcomes that could be expected if a project doesn’t happen. In your experience, does an EIS ever stop a project?

Strand: Almost never. The ‘no build’ alternative is almost never chosen as the preferred alternative. Often there aren’t many alternatives considered at all in an EIS. There are supposed to be a range of alternatives considered, but that doesn’t always happen. That’s sort of inherent in the way the process has been set up, which is that a lot of the decision-making about whether a project is going forward really precedes the environmental review.  

That was not what was originally intended. Fairly early on, in the 1970s when these laws were first adopted, a number of courts recognized that there’s kind of a conflict there; you have an agency that’s committed to a project doing the environmental review of a project. That’s one of the reasons that the courts often look at these things with a little more critical eye than they might in other situations. Courts generally like to defer to what they perceive as being the experts in the administrative agencies, but when it comes to things like environmental review, sometimes they’ll look a little bit harder, because they recognize that there are inherent conflicts in the way that the agencies are operating.

If it’s the Minnesota Department of Transportation, they want to build highways! So, if they’re the ones that are reviewing the highway, is that going to be completely fair? The DNR wants to promote mining, at the same time they’re the ones that are doing the review. You have those kinds of inherent conflicts there—a local government worried about its property tax base, for example—I mean, this happens all the time, where you have a tension between the desire to promote and get these projects built, and then the responsibility under the law to do the review and ultimately decide what the permit conditions are going to be. We see that tension all the time, and it’s just something we have to be aware of, as we go forward: it’s built into the law.

There are certainly circumstances where environmental review does work well. There is no question that projects can improve because of the environmental review process. They don’t get abandoned, because of the environmental review process, but they often will get better. That can happen. That really depends on the developer and the agencies taking their responsibilities seriously. It is certainly true that often the environmental review is treated as a box to be checked in a process of getting a project done. And when it’s just a box to be checked, the question is, “Is this good enough to get us through the courts, if it is challenged?” And when that becomes the question, then the process doesn’t work as well. Then you end up with very long, thick documents that don’t address the serious issues. They address all the non-serious issues at enormous length, because then they can show a court: look how big this is, look how long this took and how much money we spent on it. But it may not get at the issues that really matter, with respect to a particular project.

All of our laws, of course, depend on the good faith and the skill of the people who are responsible for enforcing them. Groups like ours (the Minnesota Center for Environmental Advocacy) are in the position to try to hold those agencies accountable, against the standards that are set forth in the law, and sometimes we’re successful and sometimes we’re not.

There are also places, where, what environmental review does, is it gives us a look at what cumulative impacts might be, from not just a particular project but all the projects that are likely to follow. Permits don’t really let you do that. They’re all about a particular project. But environmental review lets you take a broader look, and when we do that, we often get valuable information and some real insight. You know, environmental degradation is often referred to as a ‘death by a thousand cuts.’ We don’t mess something up all at once. We mess it up a little bit at a time. You can just keep adding a little bit of pollution at a time to a stream, and after twenty years the fish are gone. No single problem was big enough to take action against, but you accumulate all of them over a course of years and you’ve got an environmental problem that you can’t fix. So that’s what environmental review will sometimes give you: that bigger, longer term picture.

When I think back, over the years, I can say that some projects—in the taconite industry, for example— have gotten better because of the environmental review process—and in other projects, it hasn’t been as valuable in getting environmental values incorporated into the decision making.

Agate: Regarding mining, Minnesota is currently going through an environmental review process related to proposed copper nickel mining. If you were doing to give advice to the public about how best to meaningfully engage in issues related to mining in the state, what is the best thing the average citizen could do?

Strand: First of all, to the extent that you can, get some understanding of what the substantive issues are: you don’t have to be a geo-chemist to understand these issues. So,   get informed. But, even more important than that is to let the agencies know that you’re watching. If the agencies think that there is nobody terribly concerned about a project, it’s going to sail right through. These projects only get better—or get halted in the places where it doesn’t make sense—if there is a lot of public engagement. So, like a lot of things in life, that’s about showing up. That’s about going to hearings, that’s about submitting comments, that’s about writing letters, that’s about contacting legislators and the governor and agency people and letting them know that you’re very interested in how these things are turning out.

We’re seeing that right now, with respect to the mining projects, because a few months ago, what’s called a tailings dam collapsed in British Columbia: an environmental catastrophe up there. A big contaminated manmade lake collapsed, and all the contaminated water goes rushing down the river. So, people in Minnesota—citizens, legislators, others—are asking, “What are you going to do to make sure that doesn’t happen here?” Because we can’t have that happen here. So that’s the kind of engagement that makes a difference. The (Draft EIS) on the proposed Poly-met (copper nickel mining) project got almost 60,000 written comments. That’s nearly 100 times more than any other project, and that matters. They notice that; it makes a really big difference. So, getting informed and then getting engaged, that’s what citizens can do. And don’t think that they don’t listen, because they do.

(Excerpt from an interview conducted by Laurie Allmann at St. Paul offices of MCEA, 2015)