READY FOR LANDING: AFTER CONCLUDING “PILOT PROGRAM,” MINNESOTA’S ENVIRONMENTAL QUALITY BOARD DELIBERATES LONG AWAITED ENVIRONMENTAL REVIEW CLIMATE CONSIDERATION REQUIREMENTS

By: Giuseppe Tumminello, Volume 107 Staff Member

On October 19, 2022, the Minnesota Environmental Quality Board (EQB) hosted a public Environmental Review Implementation Subcommittee (ERIS) meeting. The ERIS reviewed the results from a Pilot Program it organized in order to incorporate climate change considerations on an updated EQB’s Environmental Assessment Worksheet (EAW) form.[1] Long in the works, these common-sense changes will provide guidance for practitioners and meaningful climate information for engaged environmental advocates.

I. MINNESOTA ENVIRONMENTAL POLICY ACT AND ENVIRONMENTAL QUALITY BOARD BACKGROUND

In the early 1970s, the Minnesota Legislature embarked to create foundational state policy for the stewardship of its environment and natural resources by enacting the Minnesota Environmental Rights Act (MERA) and Minnesota Environmental Policy Act (MEPA).[2] MERA established rights for a civil action against state or private entities from environmental harms.[3] Central to this ERIS meeting, however, was the program structured under MEPA. MEPA sets forth to “declare a state policy that will encourage productive and enjoyable harmony between human beings and their environment . . . prevent or eliminate damage to the environment . . . and stimulate the health and welfare of human beings.”[4]

Analogous to the National Environmental Policy Act, MEPA attempts to achieve this lofty goal by requiring review and public reporting of proposed projects with the potential for adverse environmental effects.[5] This transparent investigatory process is often referred to as environmental review. Environmental review frequently begins with the EAW.[6] Intending to be relatively cursory, the EAW process seeks to determine if the proposed project has the potential for significant environmental effects.[7] If it does, the much more thorough Environmental Impact Statement (EIS) is required.[8] The EIS provides “detailed information about the extent of potentially significant environmental impacts of a proposed project, presents alternatives to the proposed project, and identifies methods for reducing adverse environmental effects.”[9] While many facets of environmental review are not covered in this Post, the ERIS meeting focused on proposed updates to the EAW form—the most frequently employed MEPA process annually.[10]

In tandem with the foundational environmental statutes MEPA and MERA, the legislature formed the Environmental Quality Board. Among many responsibilities, the EQB is tasked with overseeing the effectiveness and ensuring continued utility of its environmental review program.[11] The EQB meets publicly every month and is comprised of commissioner members from several of Minnesota’s state agencies with relation to the environment, in addition to one public member from each of the state’s congressional districts.[12]

II. ENVIRONMENTAL REVIEW IMPLEMENTATION SUBCOMMITTEE AND CLIMATE CHANGE

Crucial to continuous improvement of the MEPA environmental review program, the EQB formed the ERIS in 2019.[13] This body consists of several EQB members with greater experience in the program.[14] The EQB has championed a years-long process to implement required inclusion of climate change related information into the EAW.[15] Following directives from the EQB’s 2019 strategic plan and encouragement from public advocates, the ERIS prioritized investigating the integration of climate related information as a requirement for review.[16] Prior to this effort, climate information was inconsistently considered in environmental review documents, and sometimes neglected by environmental review practitioners to their detriment. For instance, in 2019, after engaging in a costly and time consuming appeal, the Minnesota Pollution Control Agency decision was ultimately reversed for failing to consider climate impacts produced by an animal feedlot.[17] The court held that the absence of a specific question seeking climate information on the environmental review form was not sufficient grounds to ignore considerations of climate in the environmental review process.[18] This decision made it ever clear that climate information must be considered in at least some environmental review processes.

The ERIS first convened a staff team and reviewed strategies for integrating climate considerations into the environmental review program.[19] After considering stakeholder input, the ERIS resolved to pursue incorporating climate change information into the form used for preparing EAWs.[20] These proposed changes include GHG quantification and a review of other climate risks related to the development.[21] Before modifying the form, the ERIS sought to examine the effects of proposed EAW form changes by implementing a voluntary “Pilot Program.” Rather than using the original EAW form, environmental review practitioners could instead opt-in to using the revised EAW form with climate considerations. Subsequently, the ERIS formed an additional subcommittee to shepherd the Pilot Program’s implementation.[22] Nearly a year after the Pilot Program’s implementation, the ERIS reconvened in October 2022 to review results of the program and determine next steps.

III. OUTCOME OF ERIS OCTOBER 22, 2022, MEETING

EQB staff and Environmental Review Program Director Denise Wilson presented findings and conclusions from the Pilot Program.[23] Key takeaways of the Pilot Program report included that many opportunities were taken advantage of to provide feedback, there was good participation in cohort meetings and stakeholder surveys, fourteen EAWs were completed using the revised form,[24] and environmental review practitioners were able to comply with its added requirements.[25] Based on these findings, the Interagency Climate Technical Team recommended that (1) the revised EAW form be adopted with no additional changes, and (2) EQB staff should be directed by the ERIS to draft guidance to aid practitioner use of the revised form.[26]

Recordings of the ERIS meetings can be viewed on the EQB’s website.[27] Before discussion, the ERIS welcomed public input.[28] Doubts were expressed about the current guidance for practitioners, advocating that the Pilot Program be extended for further review of the proposed EAW revisions.[29] By contrast, it was also voiced as feasible to implement, and the merits of delaying the form’s full implementation was scrutinized.[30]

Lastly, the ERIS deliberated upon the sum of results and stakeholder input. Largely pleased with the scope of results generated by the Pilot Program, it contemplated efforts for efficient and effective implementation. Consequently, it charged staff to: (1) determine a mechanism for evaluating the programs implementation, (2) devise guidance and methods for reliable integration, and (3) present the conclusions for adoption of the revised form.[31] It seems likely that agency staff will review this charge and urge adoption of the revised EAW form at a future EQB meeting.

Denise Wilson, the EQB’s Environmental Review Program Director, graciously provided some insight. I inquired about what Minnesotan’s are to gain from the EAW form changes:

The purpose of Minnesota’s Environmental Review Program is to provide understanding of the impact a proposed project will have on the environment, through the preparation and public review of environmental documents. The Environmental Assessment Worksheet is one of the environmental documents used as a guide in issuing, amending, and denying permits and carrying out other responsibilities of governmental units to avoid or minimize adverse environmental effects and, when needed, restore and enhance environmental quality. Quantifying a proposed project’s greenhouse gas emissions and identifying important interactions between changing climate and environmental impacts can help decision makers identify opportunities to reduce greenhouse gas emissions, improve environmental outcomes and make more informed decisions about climate adaptations.[32]

When asked about the next developments for adopting the EAW form changes, Denise shared, “On December 14th, [2022] the Board will consider public feedback on the draft recommendations, as well as, the Subcommittee for Pilot Program Implementation and the Environmental Review Implementation Subcommittee recommendations to decide whether to approve changes included in the draft, revised Environmental Assessment Worksheet form.”[33]

As Wilson alludes, these modifications to the EAW form direct practitioners on what climate information to review. For practitioners, the updated form provides guideposts that informs the scope of their review process and could help avoid litigious appeals against the review’s content.[34] Plus, these modifications are timely, given the recent U.N. warnings that the 1.5 degrees Celsius maximum warming goal adopted during the 2015 Paris Agreement “is in intensive care.”[35] Transparent climate information reliably provided from developments undergoing review can advise engaged climate advocates and decision makers to forward Minnesota climate goals.

 

[1]October 2022 Environmental Review Implementation Subcommittee Meeting Packet, Minn. Env’t Quality Bd. (Oct. 19, 2022), https://www.eqb.state.mn.us/sites/default/files/October%2019%20-%202022%20ERIS%20Packet.pdf [https://perma.cc/58TR-EY67].

[2] Stephanie Hemphill, Protecting Minnesota’s Natural Resources in Law, Minn. Hist. (2018), http://collections.mnhs.org/MNHistoryMagazine/articles/66/v66i04p164-176.pdf [https://perma.cc/2C7Z-54F8].

[3] Minn. Stat. § 116B.03 (1971).

[4] Minn. Stat. § 116D.01 (1973).

[5] Minn. Stat. § 116D.03 (1973).

[6] Minnesota Environmental Review Program Data Management Plan, Minn. Env’t Quality Bd. (July, 2020), https://www.eqb.state.mn.us/sites/default/files/July%202020%20ERIS%20Packet_1.pdf [https://perma.cc/K8QM-36CN].

[7] Minn R. 4410.1000 (2018).

[8] Minn R. 4410.1000 (2018).

[9] Environmental Impact Statement (EIS) Process, Minn. Env’t Quality Bd. (Oct. 21, 2022) https://www.eqb.state.mn.us/content/eis-process [https://perma.cc/6ZVE-WVVX].

[10] Minnesota Environmental Review Program Data Management Plan, supra note 6.

[11] Minn. Stat. § 116D.04 (1973).

[12] Minn. Stat. § 116C.03 (1973).

[13] Environmental Review Implementation Subcommittee (ERIS), Minn. Env’t Quality Bd. (Oct 21, 2022), https://www.eqb.state.mn.us/content/environmental-review-implementation-subcommittee-eris [https://perma.cc/9YU2-58HK].

[14] Id.

[15] Id.

[16] Minnesota Environmental Quality Board 5-year Strategic Plan, Minn. Env’t Quality Bd. (2018), https://www.eqb.state.mn.us/sites/default/files/EQB-5yr-StrategicPlan-1-pager.pdf [https://perma.cc/7DAQ-ETSL].

[17] In re the Decision on The Need for An EIS for The Proposed Daley Farms, No. A19-0207, 2019 WL 5106666 (Minn. Ct. App. 2019).

[18] Id.

[19] January 2019 Environmental Review Implementation Subcommittee Meeting Packet, Minn. Env’t Quality Bd. (Jan. 22, 2019), https://www.eqb.state.mn.us/sites/default/files/January%202020%20ER%20Implementation%20Subcommittee%20Packet.pdf [https://perma.cc/A4EA-LBF3].

[20] December 2020 Environmental Review Implementation Subcommittee Meeting Packet, Minn. Env’t Quality Bd. (Dec. 16, 2020), https://www.eqb.state.mn.us/sites/default/files/December%2016%20ERIS%20Meeting%20Packet.pdf [https://perma.cc/B2SY-GNPS].

[21] Other proposed climate risks for review relate to altered hydrology, climate resilience, and adaptation measures. Id.

[22] April 2022 Environmental Review Implementation Subcommittee Meeting Packet, Minn. Env’t Quality Bd. (Apr. 20, 2022), https://www.eqb.state.mn.us/sites/default/files/documents/AprilERISPacket.pdf [https://perma.cc/UC6X-5EMD].

[23] October 2022 Environmental Review Implementation Subcommittee Meeting Packet, supra, note 1.

[24] While there were 48–86 EAWs per year between 2015 and 2019, these 14 were among the few completed EAWs within the span of the Pilot Program. See supra notes 1 and 6.

[25] Id.

[26] Id.

[27] Environmental Review Implementation Subcommittee (ERIS), supra note 13.

[28] October 2022 Environmental Review Implementation Subcommittee Meeting Packet, supra, note 1.

[29] October 2022 Environmental Review Implementation Subcommittee Meeting, YouTube (Nov. 8, 2022), https://youtu.be/dYe79RKCg7g.

[30] Id.

[31] Id.

[32] Interview with Denise Wilson (Nov. 3, 2022) (on file with author).

[33] Id.

[34] In re the Decision on The Need for An EIS for The Proposed Daley Farms, No. A19-0207, 2019 WL 5106666 (Minn. Ct. App. 2019).

[35] U.N. Chief Warns Planet is Heading Toward ‘Climate Chaos’, Associated Press (Nov. 3, 2022), https://www.usnews.com/news/us/articles/2022-11-03/un-chief-warns-planet-is-heading-toward-climate-chaos [https://perma.cc/VDW2-4RZS].