Legalectric

We just found out about–thanks to Stephanie Henrickson–an effort to “streamline” the Minnesota environmental review process (EAW/EIS) in favor of developers and polluters. (AGAIN, says Atty. Carol Overland, who should know.)

One proposal by would apparently end the ability of citizens to petition for an Environmental Impact Statement.

Background:  The legislature in 2008 passed HF 2123 — Omnibus Environmental Finance Bill, including:

Sec. 65. ENVIRONMENTAL REVIEW STREAMLINING REPORT.

By February 15, 2010, the commissioner of the Pollution Control Agency, in consultation with staff from the Environmental Quality Board, shall submit a report to the environment and natural resources policy and finance committees of the house and senate on options to streamline the environmental review process under Minnesota Statutes, chapter 116D. In preparing the report, the commissioner shall consult with state agencies, local government units, and business, agriculture, and environmental advocacy organizations with an interest in the environmental review process. The report shall include options that will reduce the time required to complete environmental review and the cost of the process to responsible governmental units and project proposers while maintaining or improving air, land, and water quality standards.

The problem with this, of course, is that HF 2123 doesn’t call for “improving” or “strengthening” environmental review, but only for “streamlining” it.  Streamlining is a code work for weakening.

The PCA “consulted” by holding a public meeting on September 29 of which no record was kept.  We are told that representatives of the Minnesota Center for Environmental Advocacy and Clean Water action attended.  The MPCA is accepting “written streamlining options” until 4:30 on October 14th.

In a presentation, Jess Richards of the PCA put forth “examples of options,” stating “however, the MPCA is not really advocating for any of these options.”  ( Another report with mostly historical discussion.)  The proposed “options” are all bad news:

1.      “Undo decision link between EAW and EIS”

“Under this option an EAW could no longer lead to an EIS.  Only the mandatory EIS thresholds would lead to preparation of an EIS.” In other words, no more discretionary EIS’s in response to citizen petitions.

Fran Sauer wrote: “…if this type of regulation had been in place in 2002, we would not have been able to seek an EIS.  We may not have been able to challenge the MPCA and the MPCA Citizens Board and eventually get an EIS ordered. The door would have been slammed shut and we would, most likely, be living with the effects of a tire burning plant in SE MN.”

2.       “Customize EAW forms to specific sectors.”

This seems intended to focus on already-recognized issues and prevent the raising of new ones.  “This is currently in place for feedlot EAWs…. this form focuses on the number of animal units and manure handling.  Other possible sectors that may benefit from this include [sewer plants], residential development, and sand and gravel operation.”

3.      “Early Public Engagement”

This basically means that project proposers would be encouraged or required to propagandize the public in favor of their projects.  On option for doing is this is “Require the proposer to develop a public communications plan as part of the project submittal.”

From Mr. Richards or his colleagues we get this pure industrial propaganda:

“Stall tactics: … there will always be instances where the NIMBY approach takes effect.  In these cases the public may use the ER process to create delays and to stall the RGU’s decision making process.  In these cases, no answer by the proposer or RGU is adequate in their eyes and they will use all possible options to slow or stop the project…. This situation can sometimes be mitigated by a strong public engagement effort by the proposer.” [That is, some uppity citizens actually want a say about what happens.]

4.      “Eliminate duplication between environmental review and permitting”

“Essentially this would use a checklist or some method to analyze which issues are covered by the permit process.  If the checklist determines that these issues are covered in permitting then they would not be included in the EAW.” Examples offered by the MPCA include “air risk/modelling, wastewater discharge, and stormwater management.” This would be disastrous because none of these areas–for example–are adequately covered by permitting requirements–aren’t the air and water still polluted?–and the opportunity for more comprehensive review would be gone.  The MPCA puts it this way: “…any items that are covered by a permit would not be subject to a decision on significant potential for environmental effects.” This “Would limit the scope of the decisions and provide ” …Fewer opportunities for public input on permit-related issues.”

(Says Overland: “Isn’t environmental review a PART of the permitting process, not covered elsewhere? — the most basic environmental review?”)

5.       “Green-streamlining” for existing facilities”

Experience shows that this would mean more exemptions and other special treatment for many of the most undesirable projects such as ethanol plants, feedlots, transmission lines, garbage incinerators and “biomass” burners.  It is also absurd because if a proposal was actually green why would it need exemption from rigorous environmental review?

As of this afternoon the MPCA had received only three comments.

R. L. Sauer MD, of Preston, MN, wrote (excerpts):

” … this streamlining can only be at the behest of developers and politicians that consider demonstrating best practices in environmental stewardship a tedious, unnecessary, expensive delay.  A delay that cuts into their bottom line with no benefit to the community as a whole.”

” … those involved with any “streamlining” should look in the mirror every morning and remind themselves that there are 3 million plus “stakeholders” in every project that has any potential to impact the environments air, water, or soil. Short cuts, it is often said, make long delays. In the case of environmental review it may make super fund sites. Worse than that it may make some of those 3 million sick … Removing the citizenry from the ability to petition the court for more extensive review should be discarded as a viable option.”

On the other side, Steve Menden, Vice President, Wenck Associates [A firm that works with developers of polluting facilities such as wood burners] writes:

[Does not like] “Inability of the Env. Rev. process to recognize state priorities – like energy (wind and biomass projects), solid waste incineration etc.” [That is, politically favored industries should get special treatment.]

“Need to find some way to prevent project opponents from using the ER process to slow down/stop a project without jeopardizing the public involvement process – which is important.” [That is, “public involvement” should be feel-good stuff without any real impacts.]

What you can do:

Send Ms. Heffron and Mr. Downing and your state senator and representative an email NOW, indicating your objections to these and any other proposals to weaken the Minnesota environmental review process, and to extend the public comment period at least three weeks.

If you belong to any public-interest organizations, ask them to oppose the proposed “streamlining.”

Some ideas for comments:

1)  Changes to the review process must demonstrate that they maintain or improve the environment – not merely result from developer political pressure to eliminate or reduce environmental review;

2) Public input on EAWs can improve projects and have positive results with site specific information on projects that the blanket EQB Rule categories do not address;

3) EAWs should potentially lead to EISs where site specific concerns demonstrate the need for additional study. This is a critical link in the existing process to maintain or improve the environment in specific locations;

4) Delays in project  development often result more from the developer’s slow turn around on submitting information or initially submitting incomplete/inaccurate information than from the public input portion of the process.

Alan Muller
Energy & Environmental Consulting