If you’ve ever driven on I-35E south of St. Paul, you might have noticed the road takes a bit of a curve in Eagan to avoid Blackhawk Lake and Park, with its wooden fishing dock, hiking trail, and pavilion. That curve came about through the public’s use of MEPA, the Minnesota Environmental Policy Act. Back in the late 1950s, when the federal interstate highway system was in the planning stage, a line was drawn on a map showing I-35 crossing the lake on a bridge. But some area residents thought that was a bad idea. They appealed all the way to the Minnesota Supreme Court, which ruled in 1980 that there is “abundant evidence demonstrating that (avoiding a bridge over the lake) will have less of an adverse impact on water quality, wildlife habitat, aesthetics, and area quietude.” Citing MEPA, the court said the state’s basic policy is that you can’t pollute or damage the environment unless there’s no alternative. There was an alternative to the environmentally destructive bridge, and the state had to use the alternative. Now, the highway curves, and residents continue to enjoy the peace and quiet of the lake.
This requirement to do things in the least environmentally harmful way is the core of MEPA, a landmark law passed fifty years ago as Americans were noticing the fragility of the environment and the urgent need to protect it. The legislature passed MEPA by a resounding 60 to 0 in the Senate and 119 to 7 in the House. Its aim was to corral a multitude of disparate state agencies and boards into a cohesive system to “create and maintain conditions under which human beings and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of the state’s people.”
MEPA was modeled on the National Environmental Policy Act, approved by Congress in 1969. The Minnesota law directs all state agencies to use the “latest and most authoritative findings” in decision-making, and to ensure that “environmental values… will be given at least equal consideration in decision-making along with economic and technical considerations.”
Most crucially, it establishes the need to study the possible impacts of projects before they are undertaken. MEPA requires that “where there is potential for significant environmental effects resulting from any major governmental action (including approval of private actions), the action must be preceded by a detailed environmental impact statement (EIS) prepared by the responsible governmental unit.” It also provides for environmental assessment worksheets (EAWs), “a brief document which is designed to set out the basic facts necessary to determine whether an environmental impact statement is required for a proposed action.” (116D.04) This is the process of Environmental Review (ER).
Companion legislation created the Minnesota Environmental Quality Board (EQB), a group charged with creating policy for the state and overseeing the actions of individual state agencies. Several other states created “Little NEPAs,” but Minnesota’s is generally considered one of the most rigorous, with enough scope and specificity to achieve its goals.
For 50 years Minnesota businesses, state agencies, cities and towns, Tribes, and individuals have followed these rules. To mark this milestone, EQB invited comments from businesses, agencies, environmental groups, and Tribal governments as to what MEPA has accomplished—how it works well, how it doesn’t work so well—and what might be done to ensure it continues to work into the future. That report was published in August; this article is a shortened version.
How Environmental Review works, or… get ready for alphabet soup!
The core of the environmental review process is preparation and review of Environmental Assessment Worksheets and Environmental Impact Statements.
A review can be done at the proposer’s discretion; it may be mandatory for the type of project under consideration; or it may be triggered by a citizen petition. The process often starts when a project proposer conducts a study and submits a completed Environmental Assessment Worksheet (EAW) to a Responsible Government Unit (RGU). Various governments are assigned to be responsible for certain types of projects. About two-thirds of all reviews are conducted by local governments.
Within 30 days the responsible government must determine if the EAW is complete; then the document is published in the EQB Monitor and a 30-day public comment period begins. When the comment period ends, the RGU has 30 days to respond to comments and determine whether the project requires an Environmental Impact Statement (EIS).
EISs require more steps and more information, including a comparison of potentially significant impacts of the proposal with impacts of other reasonable alternatives; these include environmental, economic, employment, and sociological impacts of the project and each major alternative. EISs also require a description of mitigation measures that could eliminate or minimize effects. An EIS begins with a scoping process, in which the responsible governmental unit uses the EAW to define the breadth of issues the EIS will cover, holds at least one public meeting, responds to public comments, and issues a final scoping decision. Then the RGU issues notice that it will prepare a draft EIS. This kicks off a comment period and a public meeting. The RGU must determine the adequacy of the final EIS within 280 days of publishing the preparation notice. Finally, government units make decisions on permits. Notably, the EIS form includes consideration of a “no-build” alternative, but this alternative has probably never been selected.
Note that it’s easy to confuse environmental review (ER) with the permitting process. Environmental review does not permit projects or stop projects. It provides information for the permit-issuing government, but it doesn’t issue permits; that’s up to state agencies, or local governments like counties and cities.
Here’s the good news.
Most of our respondents were happy to declare that the environmental review process in Minnesota is based on sound principles and works well most of the time. In fact, many of them express pride in Minnesota’s long commitment to environmental protection.
“It has been an important foundation of how we govern in Minnesota,” says Department of Natural Resources (DNR) Commissioner and EQB Board member, Sarah Strommen.
“Citizens really do expect this vision to be fulfilled and they want to work on it together,” says former EQB citizen member Kristen Eide-Tollefson.
Environmental attorney David Zoll says it has enhanced stewardship both directly and behind the scenes. “The fact that applicants know that their projects will be subject to environmental review means that they are more likely to incorporate changes that mitigate potential adverse impacts into their plans before beginning environmental review.”
On a more concrete level, attorney John Herman, one of the original proponents of MEPA, lists several high-profile projects he says were made better by going through the review process:
- The interchange of I-35E and Highway 494 in Dakota County takes a lot less space than it would as originally proposed.
- The Cedar-Riverside development, where the environmental review made it obvious that the scale and the nature of the project was inappropriate and later phases were never built.
- RiverPlace, where environmental review led to a more sensitive and aesthetic approach.
- And three possible locations for the Metrodome were considered.
What can we do for the next 50 years?
But we know there are plenty of gaps in Minnesota’s environmental performance, including the perennial legislative efforts to abolish the EQB. Far from the days when Republicans and Democrats worked together to protect the state’s resources, now the apparently impassable political rifts more often lead to paralysis. But in a state of good government, with lots of well-informed people involved, surely there is much we can do to help MEPA live up to its lofty goals—goals that are even more important in our current climate. Suggestions tend to fall into several topic areas for improving the system and living up to MEPA’s intent.
Several of our respondents used the term “weaponized” to describe the ER process. Willis Mattison, who held positions of responsibility at both the DNR and the PCA, says, “When an environmental review document is written that hides or obfuscates, or in any other way does not tell the truth about what a particular project will do to our environment, it is being used as a weapon. It continues to justify the unjustifiable.”
Consultant Ann Glumac (Glumac Executive Enterprise) uses the same term to describe project opponents rather than project proposers. “It’s my perception that EAWs and EISs have been weaponized by opponents. And I think perhaps if project proposers perceive them not as an attempt to generate data but as an attempt solely to stop something from happening, the reaction might be to try to just get in under the wire.”
So, we get proposals for 1,999-head feedlots instead of the 2,000 that would trigger a requirement for environmental review. We get plans for housing developments just smaller than the cutoff point, and proposals for mines that would ship the ore to another state for processing. Does this mean that project sponsors are irresponsibly avoiding the rules, or that they are using the rules to tailor their projects to fit Minnesota’s requirements?
Environmental campaigner Don Arnosti says too often RGUs don’t take the process seriously enough to really identify the likely effects of a proposed project. “The process of environmental review has become performative, regarded as a hurdle, a thing to check off,” he says.
“It becomes a numbers game,” says Ann Glumac. “How many letters can you generate in support of or in opposition to something? How many people can you get to show up in opposition or support of something? It has become a stand-in for true public or proposer merit.”
With email and social media, organizers can flood an agency’s mailbox with identical comments, and it sounds impressive that ever-increasing numbers of people are involved. The ease of communication encourages public participation, but it’s also easy for decision-makers to discount form letters.
Sherry Enzler, General Counsel for the Minnesota DNR, has overseen many environmental reviews. She affirms some of these observations. “We have to get away from the attitude that ‘this is a big burden that everybody has to go through and at the end, we’re just going to stop the project.’ Our attitude should be: ‘how can we get the most robust information we can possibly get on a proposal and its impact on the environment, so we can make a wise decision.’”
She says some project proposers resist the process. “They seem to think that if they do environmental review, they’re admitting that their project has negative impacts. And they don’t want a project that’s bad for the environment. Sometimes they feel no matter how well they do ER, people will attack their projects anyway.”
In some ways the EAW and EIS forms have not caught up to current scientific understandings of how ecosystems work. There are questions about rare and endangered species, but too often the result is simply to propose a way to protect that species, just enough so it won’t disappear, leaving the plant or animal teetering on the edge of extermination. Meanwhile, the surrounding natural community which supports that species continues to be diminished or lost. Ecosystems are a complex web of dependency and interdependency and competition, and no Environmental Impact Statement can describe those relationships.
The rifts that plague our political leaders have long tails that can get in the way of environmental protection, says consultant Brian Murdock (Condition Services). He served on the EQB Board for four years and wishes for smoother resolution of issues. “I wish the EQB wouldn’t go in spurts and stalls,” he says. “I understand that during a Republican majority, they might consider getting rid of environmental review altogether. It would be nice if it operated in a way that was close enough to just doing well for the environment and project proposers, so that one group or the other wouldn’t be having to slingshot it back in the other direction each time. I wish it was maybe a little less political.”
This raises the image of a MEPA threading its way around and about projects, slipping through controversies with decisions that try to satisfy everyone without challenging anything. That is not what the originators of MEPA intended.
Which kind of review?
Some of the pioneers of MEPA are deeply discouraged by the shift that occurred early in the law’s existence from routine preparation of rigorous Environmental Impact Statements to reliance on the far more basic Environmental Assessment Worksheets. The EAW was meant to be used to decide whether a project required further study; if the answer was yes, it could be used to outline the areas that a deeper EIS should focus on.
“The process has devolved into the preparation of numerous and lengthy Environmental Assessment Worksheets, which almost always conclude that there is no potential for environmental effects,” says Chuck Dayton, an attorney with the Sierra Club in the 1970s who helped write the law and push it through the legislature in 1973.
The short EAW doesn’t require an examination of alternatives, and it’s this omission that Dayton focuses on. “The consideration of alternatives is the heart of the substantive standards of MEPA,” he says. “The law tells us how important the concept of ‘feasible and prudent alternatives’ is. If there is such an alternative, that prevails.”
Indeed, that’s why there is a curve in I-35E to avoid crossing Blackhawk Lake.
Dayton suggests several options to rectify this omission. The EQB Board or Chair could change the EAW form—as it recently did by adding questions about greenhouse gas emissions—to require a discussion of alternatives to the proposed project. If the Board is unwilling, members of the public could petition the EQB to do this or could challenge the adequacy of MEPA’s implementation in court.
In recent years, so few EISs have been prepared that they can be listed in single digits, while EAWs range from 50 to more than 80 yearly.
“We’re not getting to alternative analysis soon enough,” agrees attorney Byron Starns, who represented the state in the landmark Reserve Mining case in the late 1970s. “That violates the basic principle of environmental law, which is the land ethic. The whole thing is all about preserving the land where you can and locating human activities where they won’t do so much damage.” And it is possible to do extensive analysis of alternatives. Back in 1975, when Reserve Mining (now Northshore Mining) was under a court order to stop dumping its tailings, or waste rock, into Lake Superior, the state “went and looked at locating them all over the place, including 30 miles away, and the ultimate decision was to put the waste basin several miles away from Lake Superior,” says Starns. (Northshore Mining is currently applying for a permit to expand the 40-year-old basin.)
The main reason project proposers want to avoid doing an EIS is that it can take a very long time. But now, many are putting so much data into EAWs that they could be called EISs. Still, they don’t usually include alternatives.
EQB member Mehmet Konar-Steenberg says it doesn’t make sense that so few EISs are done. “Why do EISs almost never happen?” he asks. “How is it possible that so many projects that are significant enough to require a government permit somehow don’t carry even the ‘potential’ for significant environmental effects? I think these questions deserve some focused attention.”
Frequently an EAW will conclude that the project will cause “no significant effects” because there are rules in place that provide ways to mitigate the impacts. This does not guarantee that the rules will be implemented; neither does it consider alternatives or cumulative impacts.
Former EQB administrator Gregg Downing says a well-done EAW is better than a poorly done EIS. He cautions: “It’s darn hard in a lot of cases to really do a good analysis of alternatives to a project. Because the developer was not particularly interested; they may have considered alternatives, but they don’t really want to talk about other alternatives.”
Who should review?
As originally designed, conducting environmental reviews was assigned to the Environmental Quality Board itself, with staff help. Very quickly the Board, dominated by busy state agency heads, decided this was too much work, and they began assigning proposals to other governments so they could spend their time on broader and more far-reaching questions. They also believed local governments had better knowledge of local conditions and would do a good job.
“Ever since then, there’s been the question of should we go back the other way, or should the EQB have more veto authority over decisions,” says Gregg Downing. On the one hand, the EQB Board was freed to take on other responsibilities, such as thinking ahead about emerging environmental issues. On the other hand, frequently the RGUs were ill-prepared to conduct reviews. And guess what—they were busy too! Further, the EQB has only a spotty record of proactive planning.
John Herman says the EQB probably doesn’t think of itself as the place where big ideas get analyzed and discussed. He says many of the agency heads probably see it as an imposition on their time. “The DNR doesn’t want the Department of Agriculture telling it what to do with the state forests and the Department of Agriculture doesn’t want anybody telling it what to do about anything,” he says.
After years of trying to help local governments handle the challenges, Greg Downing says the effectiveness of a review ultimately comes down to commitment and hard work by the RGU. “They need to make a good faith effort to answer the questions, get the information, stick to the facts, that sort of thing: they need to put the staff resources into it or hire resources.”
He says it’s sometimes tempting for inexperienced or smaller units of governments to skew the review. “If you’ve got a government that’s all gung-ho about some project, despite some opposition, and despite any flaws the project might have, if they want it to go through, they may do a kind of poor, superficial job and avoid disclosing and dealing with the issues that are there,” he says. “And then the process hasn’t done its purpose; it hasn’t served anybody very well, except the development project.”
Resources are undoubtedly a challenge for any government doing environmental reviews, but especially so for smaller local governments. The reviews often require a lot of technical information which is not readily at hand. Even the procedures are unfamiliar if the city or county rarely deals with ER. Local governments can ask the EQB for help, and EQB provides some technical assistance. However, ultimately the review needs to be completed by an RGU. Perhaps they are reluctant to admit their incapacity, or perhaps they don’t want to cede control, especially if they have become cheerleaders for the project.
Other respondents agree local governments need help. The DNR’s Sarah Strommen says, “It’s important to create some consistency both for members of the public who rely on that process to feel assured that potential environmental effects are considered and for project proposers to know their project is going to be fairly evaluated,” she says.
On the other hand, Tony Kwilas at the Chamber of Commerce says it’s often easier for project proposers to deal with smaller units of government. “Local governments tend to be more efficient than state agencies; it’s easier to get answers,” he says.
Transparency, public involvement
Many respondents praise the culture of transparency required in the ER process. But they acknowledge that it sometimes gets clouded.
It is easy and comfortable to follow the standard procedures about public notification and outreach. But these observers say that the EQB needs to be creative about connecting with the public, especially those who have not been involved in the past. This can be challenging and time-consuming, but it is part of keeping the agency relevant.
Of all the missteps that can occur in the environmental review process, legislative intervention can be the most destructive to the goals of transparency and consistency. Everyone understands how the process is warped and government loses credibility when powerful people put their weight on the scale. In 2021 the legislature exempted a planned oriented strand board plant in Northeastern Minnesota from a required EIS on the project. The Leech Lake Band of Ojibwe sued, and the court ruled in the Band’s favor, prompting the company to leave the state rather than conduct the study.
“All we wanted was for them to do it right,” says Brandy Toft, Environmental Director at the Leech Lake Band of Ojibwe. “Since legislators got involved, we fought like hell to make sure they were following the correct process. And we heard from many state and even federal agencies that were bewildered at how this could happen.”
Cumulative effects, environmental justice
Researchers are documenting the many ways in which pollution and other forms of environmental degradation affects low-income people, especially people of color. These range from lead paint to traffic pollution to a lack of grocery stores. According to the MPCA, 32% of all communities in the state have air pollution-related risks above health guidelines. However, in low-income communities, the number is 46%. In communities of color, it’s 91%.” This is a shocking number, and agencies are beginning to look for ways to address the problem during ER processes. The legislature in 2023 required the MPCA to begin to reverse these injustices in defined “environmental justice areas.“
The relationships between Tribal and non-Tribal governments remains problematic. For 150 years most Minnesotans did not understand the need to recognize tribal sovereignty and were not aware of the value of tribes’ contributions to natural resources protection.
This basic misunderstanding is at the root of the many tensions between state, local and Tribal governments. Brandy Toft says, “People don’t understand if their project affects a Tribe unless they understand Tribal sovereignty, reservations, and ceded territories.” She recommends that every state employee should take Tribal/State Relations training, which is now offered at all state agencies. Leech Lake hosted that training last fall, and Toft says everyone learned significant and useful things. “There’s 200 to 150 people in the room and they come out just kind of wide-eyed and light bulbs going off,” she says. “So, we just need more of that.”
It’s not just state agencies that haven’t quite grasped the unique status of Tribes; local governments have this problem as well. Yet, the EQB delegates many decisions to local governments, says Margaret Watkins, Water Quality Specialist at the Grand Portage Band of Minnesota Chippewa. Further, “As mediators on issues like the protection of wild rice, in the past the EQB has sided with state agencies, saying ‘the time isn’t right’ and ‘more education is needed.’ I don’t disagree with the need for ongoing education, but without litigation the state has not protected a single wild rice water since the sulfate standard was adopted in 1973. I have a huge problem with that,” she says. Watkins suggests that all EQB Board members should go through Tribal/State Relations Training at least once each year. More than half of EQB members and staff have been through the training, and the rest anticipate doing so.
Tribal participation helps everyone, says Amanda Wold, Deputy Environmental Director at Leech Lake. “When the tribes step up to the plate to say, ‘We don’t want to see this’ or ‘This is a concern,’ it’s not just for tribal members; it’s helping all Minnesotans. It’s protecting the resources for everyone. The tribes historically are one of the few groups willing to step up and put everything on the line, and it’s frustrating when the state puts all these barriers up even to get an EAW.” Wold and Toft say things are getting better. Governor Walz in 2021 required all state agencies to direct certain staff to complete the state’s Tribal Relations training mentioned above.
“In the years since, there’s been a lot more engagement and communication and understanding of tribal sovereignty,” says Toft. “And I think that’s been difficult for these state agencies to comprehend and process. It’s a change for them to realize that we do have experts here, we do have concerns and that our concerns need to be incorporated. So, we’re working to be engaged in the process before it gets to public comment,” she says. When Tribes are engaged early in the process, “not just the state but the project proposer gets the benefit of our involvement. In that respect, there’s been a lot of forward movement and progress,” Toft says.
In addition to serving as the body responsible for environmental review, the Environmental Quality Board is also designated as the place for identifying and studying environmental issues, especially emerging problems and those that cross agency boundaries. The law requires it to review state agency programs and coordinate programs that are interdepartmental in nature. It also has the authority to review permitting rules and resolve conflicts of interest among agencies.
This forward-looking work has happened sporadically in the history of the EQB.
One obvious challenge calling for study and planning is climate change. In a familiar pattern, citizen groups pressed for inclusion of climate change in Minnesota’s environmental review system for 15 years before EQB added questions about climate change and greenhouse gases to the EAW form last year. But these questions include no guidelines or requirements for reducing greenhouse gases; they simply ask how much the project will produce. They are planned as a first step that will ultimately lead to reductions.
This year the legislature showed leadership on climate change, requiring the state’s utilities to generate one hundred percent of their electricity from carbon-free sources by the year 2040, appropriating millions of dollars to help cities deal with the climate crisis, and creating a “green bank” to finance clean energy projects. Perhaps the example of these new laws will embolden the EQB to be more proactive.
Other likely future challenges include ever-bigger feedlots, surface water quality and quantity, controversies over solar gardens and wind farms, ag pollution, PFAs, invasive species and genetic engineering.
This year, EQB created a Continuous Improvement Program. After a year of study, staff and board are now incorporating the recommendations gathered from experts and the public.
The EQB has been shunted from one agency to another in its 50 years of existence. Staffing has gone up and down—mostly down—depending on Minnesota’s financial resources. The architects of the law back in 1973 envisioned the EAB as a body like the national Council on Environmental Quality, where three experienced, independent members of the public are appointed by the President.
That was the model the Minnesota legislature attempted to follow. In an article in Minnesota History magazine (winter 2018), State Senator Bob Dunn, Republican sponsor of the MEPA legislation, said he envisioned a small board of just three “strong, independent, knowledgeable, and experienced citizens” who would be appointed by the governor and advised by relevant agency heads. “Some of the people who headed the agencies weren’t very pleased with that,” Dunn says. As Chuck Dayton puts it, they “vigorously opposed having another state body ordering them to do EISs.” Legislators compromised by putting agency heads and three public members on the Board. Dayton served as one of the first public members. He says, “The real power was in the hands of the agencies. This led to the adoption of mandatory thresholds for EISs that are very high, and almost never triggered.”
Currently the EQB board consists of the heads of nine state agencies and eight public representatives, one from each Congressional district, appointed by the governor. Most environmental activists would prefer to see stronger public influence on the board.
Not only do agency heads understandably need to concentrate their energies on their own agencies; they have no built-in incentive to build up the EQB or expand its role. One of the realities of bureaucracies is that they prefer to operate independently and not be told what to do by a higher authority, such as a coordinating body.
The Citizens Board of the Minnesota Pollution Control Agency was eliminated by the legislature in 2015, after it recommended more study for a proposed 9,000-cow dairy farm near Chokio. With that experience in mind, most observers are skeptical about the chances of moving toward more citizen control at EQB anytime soon.
Why it’s so hard to make changes
There have been many studies aimed at improving the Minnesota environmental review process. One that Gregg Downing recalls concluded that “the only thing we can agree on is that we can’t agree on how to improve anything.”
He says change requires acceptance from a wide variety of interests, “and if you can’t get that, you probably aren’t going to be successful, because somebody with influence in the legislature will probably just get involved and undo it there.” He says in the early days, the legislature left the EQB alone. “But as time went on, they got more and more involved, to the point where they would exempt specific projects from EISs and tell the board they couldn’t adopt categories for certain things, or they had to adopt categories for others. To make any broadscale reforms you usually ran into that same reality, that it probably politically just wasn’t going to make it.”
That reality has been in place for a long time. Since the mid-90s, Downing says the staff has been “hesitant to go to the legislature to make any statutory changes for fear of opening a Pandora’s Box, and it would get out of our control and bad things could happen.”
So far, most of the changes have been to exempt certain classes of projects, or to raise thresholds for mandatory reviews, particularly in the agricultural industry. The result is to put more and more projects out of the reach of environmental review.
Still, there is wide scope for change in the rulemaking process, and in less formal approaches. The section on climate change recently added to the EAW form is a case in point. It was added after much discussion and effort to bring everyone on board, but not by going through a much more time-consuming rulemaking process. A similar approach could be used to add information about alternatives to the proposed action.
Small changes are possible. But climate change is an urgent, existential challenge. It calls on us to be tough-minded, inventive, and ready to sharpen all the tools our predecessors were farsighted enough to create.