The article is not a substitute for legal advice.
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 climate change and the greenhouse gas emissions from the expansion, and the MPCA should develop an EIS to approve the expansion. The court of appeals agreed with the MCEA, and now the MPCA will need to 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 dairy located in Minnesota that was seeking to expand its operation. The dairy applied to the MPCA for a significant modification of its NPDES feedlot permit. As apart 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 an environmental review required by the MEPA and complete an environmental assessment worksheet (EAW).
A draft EAW was made 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 the concerns raised by MCEA, MCEA requested that MPCA should 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 only focused on the decision related to the need for an EIS. On appeal, the MCEA argued that the MPCA failed to take into account the effects of greenhouse gas emissions and failed to take into account 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 that allows an agency, such as the MPCA, to determine if an EIS is required for a proposed project. 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 looks at methods to mitigate potential environmental impacts of the proposed action.
In this case, the MPCA used a worksheet for the EAW designed for feedlots, but the worksheet did not refer to greenhouse gas emissions and did not require the dairy to provide information on greenhouse gas emissions. But in the comments to the EAW, MCEA raised concerns that the EAW contained no analysis of greenhouse gas emissions. The MPCA addressed these comments by saying the agency did not have to consider greenhouse gas emissions.
The court of appeals agreed with the MCEA that the MPCA was not limited to requirements on the EAW. MCEA raised potential significant environmental effects in the comment period, and the MPCA should have addressed those environmental effects. The court did acknowledge that taking into account the possible environmental impacts of greenhouse gas emissions would not be easy. The court agreed with the agency and the dairy that measuring the impact of greenhouse gas emissions from a dairy is not easy, but the MPCA needed to explain in the order.
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 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 not completing 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 to the permitting process and complete the process. The agency may still approve the order denying an EIS and approving the NPDES permit modifications. Still, the agency has to 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 does that mirrors the National Environmental Protection Act that requires an agency to 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 state 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 in the future.
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).