John Herman. Photo © Stephanie Hemphill.
Part of a series based on interviews conducted for the Minnesota Foundational Environmental Laws oral history project, focusing on passage and uses of the Minnesota Environmental Rights Act (1971) and the Minnesota Environmental Policy Act (1973). The project is funded by the Minnesota Historical and Cultural Heritage Grant program; audio interviews and transcripts are housed in the Kathryn A. Martin Library Archives and Special Collections at the University of Minnesota Duluth. https://lib.d.umn.edu/mn-foundational-environmental
Among the nine people interviewed in this project, John Herman has had perhaps the most surprising career path. He went from being an environmental lobbyist at the fledgling Minnesota Public Interest Research Group (MPIRG) at the University of Minnesota to promoting high-profile development projects as a real estate lawyer. It sounds like quite a switch, but it makes sense as he explained it.
I interviewed John Herman at the home he and his wife Diane share, on a bluff above the St. Croix River. The graceful wood-and-stone house sits on ten acres landscaped with a lovingly-tended mix of pines and oaks, prairie plots and gardens fenced against the deer.
As a young Harvard Law School graduate, Herman came to Minneapolis in 1971 to interview for a job at MPIRG. It was a robust organization, with four lawyers, several scientists, and office staff. “The one-dollar-per-quarter student service fee went a lot further in those days,” he remembered with a smile, “and we were working for much lower wages.” He had other job offers, but he liked Minnesota, and he especially liked Chuck Dayton, then the legal advisor at MPIRG. Both men worked there for two years, after which they formed their own law firm, which they called “Dayton and Herman, Honest Lawyers.”
The early 1970s were a time of ferment, with rising nationwide concern about environmental damage and a new determination to do something about it. Many Americans responded to the wake-up call in Rachel Carson’s Silent Spring, published in 1962. They were further outraged by a series of high-profile disasters, including a massive oil spill off the coast of California at Santa Barbara, and a fire on Cleveland’s Cuyahoga River, both in 1969.
In St. Paul, ideas for tackling these kinds of problems were swirling around the Capitol, and both conservatives and liberals were considering legislation to address a wide range of issues, including preserving wild and scenic rivers, effective siting of power plants, recycling fees on bottles and cans, and maintaining open space in the metro area. Chuck Dayton and John Herman helped write many of these measures.
“More than anyone, environmental lawyers Chuck Dayton and John Herman have commandeered a cascading riff of laws and rules that pushed the currents of political discourse at the Legislature toward sustainability.” Mark Andrew
In 1972 Democratic Governor Wendell Anderson convened several committees to study potential environmental legislation. These were bipartisan working groups, and Republicans who participated actively included Bob Dunn of Princeton, William Kirchner of Litchfield, Harmon Ogdahl of Minneapolis, Rolf Nelson of Golden Valley, and Jim Ulland of Duluth. DFLers interested in the environment included Willard Munger of Duluth, Win Borden of Brainerd, John Boland of Maplewood, and Bruce Vento, Fred Norton, and Wally Hanson, all of St. Paul.
The 1973 legislative session opened with Democrats in charge of both Minnesota’s House and Senate for the first time in living memory, “so it was a wholly different place in which to advocate for environmental laws and all manner of other changes,” Herman said. “It was an expansive and robust time, and we wrote a lot of laws because everybody [in the legislature] wanted to be an author of some kind of an environmental bill.”
Among several environmental laws that passed with little opposition was the Minnesota Environmental Policy Act (MEPA). Modeled on the National Environmental Policy Act (NEPA) which President Richard Nixon had signed on New Year’s Day, 1970, the law laid out a general framework defining how the state should approach environmental issues, and required that any project that might affect the environment should be preceded by a study of possible impacts, including alternatives. The law said that any project that was likely to harm the environment should not proceed unless there was no “feasible and prudent alternative,” and that economic considerations were immaterial.
At a bill signing in the early 1970s, Gov. Wendell Anderson is surrounded by framers of historic environmental legislation. From left: Environmental lobbyists Chuck Dayton and John Herman, Rep. Willard Munger, chief author of many environmental bills, Gov. Anderson, Jackie Rosholt (Munger’s aide) and Peter Gove, Governor’s environmental aide.
In more recent years, the environmental reviews mandated by MEPA have gotten a bad rap from industry and conservative lawmakers. The Environmental Impact Statement for the proposed PolyMet copper-nickel mine in northeastern Minnesota took more than ten years to complete. But that is not what the framers envisioned, according to Herman. “None of us conceptualized this as something that would stop everything; we thought of it as a law that would be pretty effective, and streamlined, and would help make decisions better,” he said.
The concept of identifying alternatives was key, and that approach has had an impact on many areas of public policy, according to Herman. “Minnesota’s commitment to recycling, and to dealing with the things you can’t recycle by burning them to produce energy, grew out of the idea that you should look for alternatives,’” Herman said. “Also, it’s now commonplace to do a multi-route analysis before making a decision on road or pipeline construction. It doesn’t mean everyone arrives at a consensus on what’s the least environmentally harmful option,” he explained, “but at least we’ve gotten away from the earlier approach of wanting to get from point A to point B, and simply looking for the straightest line.”
Another law passed during the 1973 session created an Environmental Quality Council (later changed to Board, EQB). This turned out to be more contentious than passing MEPA itself. Herman (representing MPIRG), Dayton (representing the Sierra Club), and other framers envisioned the EQB as an independent, expert body that would determine when environmental studies were needed and whether the local government or state agency had done an adequate job in preparing the study.
“We were thinking we could have the EQB as the traffic cop,” he explained. “But this really scared the state agency heads, and the governor didn’t like the idea, so a huge argument ensued.” The main industry lobbying group, the Minnesota Association of Commerce and Industry (MACI), represented by Ted Shields, lined up with Governor Wendell Anderson in calling for an EQB made up of agency heads, but Herman and others thought that would be like putting the fox in charge of the chicken coop.
The dispute went on for weeks. “I remember meeting often with Peter Gove [the Governor’s advisor on environmental issues], Jerry Christiansen, who was the head of the state planning agency, and Bob Dunn and Roger Moe [an up-and-coming young senator from western Minnesota], to talk about this. And of course, Ted Shields was in those meetings, and Chuck Dayton, and we were debating, ‘how should we structure this?’”
Finally, near the end of the session, “we crafted a compromise, which like all compromises was not perfect,” Herman recalled. The initial EQB was made up of three citizens appointed by the governor, six agency heads, and a representative of the governor.
As Herman sees it, each agency has its own interests to protect and little incentive to make extra work for itself, and the citizens aren’t paid enough to really dedicate a lot of time to the job. Over the years new agencies have been added, “so now it’s even more unwieldy, but it’s still a board where you can go and talk about broader state environmental policy issues,” said Herman. He gives the early EQB credit for setting out rules for how environmental reviews should be conducted and providing guidance on what constitutes an adequate review. “But the EQB is not the traffic cop that this young lawyer imagined they were going to be in 1973; it’s much more stand-off-ish.”
Thinking about the merits of MEPA, Herman said it has encouraged project proposers, state agencies, and local governments routinely to look at alternatives and find ways to mitigate impacts. “I think you see more sensitivity in development today than you did in the ‘50s or the ‘60s when they would just bulldoze huge areas, so it’s been inculcated in the culture a bit.” On the other hand, analysis of alternatives runs up against limits. “Whoever wants to do the project, whether it’s the agency or a private developer, they want their alternative, and they seldom are really looking for alternatives that are much different from their preferred one. But people know the requirement is there, so they do take it into consideration when they make a proposal,” Herman said.
“In fact, the society has incorporated these values so thoroughly that some project proposers view the environmental review process as a good way to move projects forward and anticipate problems and solve them before they become so controversial that they are embroiled in a long fight,” he said.
This pretty much describes the second part of Herman’s career. In the late 1970s his successful lawsuit to stop the Cedar Riverside project (as proposed, it was far larger than the few apartment towers that were ultimately built) recast him as a real estate attorney. At first he specialized in helping cities and projects get through the environmental approval process. Later he became a “go to” lawyer on complex redevelopment projects, like Laurel Village and RiverStation in Minneapolis. He also represented major cultural organizations such as the Walker Art Center and Orchestra Hall as they expanded, building the community’s reputation as a cultural mecca. And he advocated for many parks and trails projects.
Herman, receiving the Minnesota Brownfield Rescape Leadership Award in 2016 for proposing and passing the Land Recycling Act.
His longtime law partner, Chuck Dayton, described Herman as a problem solver. “He would go beyond finding out what the law is and telling clients what they could and couldn’t do; if it was something that required a change in the law he’d try to figure out how to change the law.” Only half-joking, Dayton said, “We used to have a Messiah complex: we’d look around at the world and say, ‘what’s wrong, and how can we change it?’”
Herman liked to help business do the right thing for the environment. When laws addressing liability for hazardous waste were getting in the way of industrial site redevelopment projects, he convinced the Minnesota Bankers Association and the Minneapolis Community Development Agency to partner to establish the nation’s first brownfield clean-up program, dubbed “Land Recycling.” Similarly, he pushed for a “no-fault” approach to cleaning up landfills, a program that has saved millions of dollars in litigation costs, while accelerating landfill clean-ups.
Reflecting on his life’s work, Herman said he is proud of contributing to a culture that values the environment, a culture he hopes will ultimately help solve the challenge of global warming. “I’m pretty proud I was able to be part of laying that groundwork. Minnesota was a fertile place to do it: we are a state that cares about the out-of-doors, and we’re also a problem-solving state,” he said.
Named Minnesota Environmentalist of the Decade for the 1970s by the Sierra Club for his role in drafting many of the state’s environmental laws, in 2017 Herman continues to share his expertise on projects that benefit the state’s natural and cultural heritage. He also manages to catch the occasional largemouth bass in the BWCA.
This oral history project was made possible in part by the people of Minnesota through a grant funded by an appropriation to the Minnesota Historical Society from the Minnesota Arts and Cultural Heritage Fund. Any views, findings, opinions, conclusions or recommendations expressed in this publication are those of the authors and do not necessarily represent those of the State of Minnesota, the Minnesota Historical Society, or the Minnesota Historic Resources Advisory Committee.
