The MSBA ENRE Website is provided as a service to Section members and is devoted to updating the membership of the MSBA ENRE Section on developments and issues in environmental, natural resources and energy law. The Section does not advocate any particular point of view with respect to environmental, natural resources or energy policy. All contributors to the website are expected to disclose any personal or professional involvement that the contributor has in connection with the subject of his or her submission. The Section reserves the right to edit or reject any submission.
Soil vapor migration in Minnesota Brownfields
Imagine, for a moment, you own a real estate development firm. Your company specializes in flipping neighborhood-killing contaminated properties nobody else will touch. You’ve just completed a voluntary cleanup of a property laced with volatile organic compounds in the soils and groundwater. The remediation process took years – from identifying the
By John Ryan
contaminants, to hashing out cleanup options with the Minnesota Pollution Control Agency (MPCA), to excavation and treatment of the soils. Plus, you’ll spend much of the next decade in court seeking cleanup costs from a responsible party that fights all its legal battles by attrition.
Click here to read more.
Using the Common Law to Fill a Regulatory Void: Can Common Law Remedies be Used Against Hydraulic Fracking Entities?
By Tim Gorde
Hydraulic fracturing (also knowing as fracing or fracking) has led to a new energy boom across many different areas of our country.1 Fracking is a process in which a well is drilled, cased in concrete and cement, then fluids are pumped into the ground under pressure creating fractures through which natural gas or oil can flow into the well.2 It is crucial to domestic oil production; approximately thirty-five to forty percent of oil reserves would be unrecoverable without the use of fracking.3 Yet, the process is not without controversy, as people fear that fracking could be leading to groundwater contamination4 and even micro-earthquakes. Click here to read more.
A Taking of What? How Extending Nollan and Dolan to Monetary Exactions will have a Significant Impact on the Effectiveness of Minnesota’s Wetland Conservation Act
The abundance and diversity of Minnesota’s wetlands are virtually unmatched by any other state.1 The economic and ecological benefits of these wetlands range from providing critical wildlife habitat and natural flood prevention2 to playing a unique cultural role.3 However, only fifty percent of Minnesota’s original wetlands remain.4 To stop this depreciation, the
By Tom Burman
legislature enacted the Wetland Conservation Act of 1991 (“WCA”), calling for a “no net loss in the quantity, quality, and biological diversity of Minnesota’s existing wetlands.” Click here to read more.
Environmental Response Fund Restored
By Chuck Salter
A tiny tax that has created more than $1 billion in private redevelopment died at the end of last year but was resuscitated through the efforts of Hennepin and Ramsey Counties and partners interested in economic and community development.
The Minnesota Legislature reinstated the Environmental Response Fund (ERF) before it adjourned in May. Hennepin and Ramsey Counties used the fund for more than 10 years to clean up hazardous waste sites, but the law expired December 31, 2012. The new law keeps the fund going through 2028.
“This was a great effort for a great cause,” Hennepin County Attorney Mike Freeman said. “Cleaning up pollution to allow future development is really important for our communities. This very small fee helps fund important efforts to reuse critical land. Great work legislators and advocates!”
The fund is unique to Ramsey and Hennepin Counties and is funded by a small tax on property transactions. The counties collect both a mortgage registry and a deed tax of 1/100th of 1 percent each or $20 for every $100,000 of any property sold in those counties. Click here to read more.
Minnesota’s Solar Energy Mandate
By Alex Moss
On May 23, 2013, Governor Mark Dayton signed into law the Solar Energy Jobs Act, which will increase the state’s solar generation significantly in the next decade, as part of a large omnibus economic development bill. The energy mandate includes a 1.5 percent by 2025 solar electricity standard for all investor-owned public utilities. Act of May 23, 2013, ch. 85, art. 10, § 216B.1691 (2013). A non-mandatory solar energy goal of 10 percent by 2030 is also outlined in the bill. Id. The new mandate is imposed on top of the 25 percent by 2025 renewable energy standard passed in 2007. Click here to read more.
Garbage Burning in Minnesota Gaining Steam?
By Samuel Johnson
In downtown Minneapolis, in the shadow of Target Field, sits the Hennepin Energy Recovery Center (HERC). HERC is a cornerstone piece of Minnesota’s plan to reduce landfill use as the state continues its quest to find greener solutions to its environmental problems. HERC burns approximately 365,000 tons of garbage a year, or just over one-third of Hennepin County’s total garbage production. See Hennepin County, The Hennepin County Energy Recovery Center: A Waste-to-Energy Facility, available at http://hennepin.us/HERC. Hennepin County currently operates HERC at 90% of capacity, but wants to increase capacity to 100% in order to take an additional 40,000 tons of garbage out of the waste stream each year. This plan has met with resistance from the Minneapolis City Council. See Rochelle Olson, Hennepin County: Standoff over trash burner’s capacity is rubbish, Star Tribune (Mar. 15, 2013). This article will address the concerns of the Minneapolis City Council (MCC), the Hennepin County Board (HCB), and the Minnesota Pollution Control Agency (MPCA) as it relates to Minnesota’s legislative goal of pursuing green energy and reducing reliance on landfills to dispose of our waste. Click here to read more.
Frac Sand Mining Moratorium Update April 2013
By Samuel Johnson
An article posted to this website in 2012 provides background material about frac sand in Minnesota and Wisconsin as well as information about moratoriums approved by governmental bodies in both states. This update shows the current status of the moratoriums as of January 2013. Notations in bold reflect changes that have occurred between September 2012 and January 2013. Click here to read more.
Forest Roads and Clean Water Act Update
By Professor Jay O’Laughlin
The Clean Water Act (CWA) mandates that the discharge of any pollutant by any person is unlawful, except in compliance with other provisions of the statute. The CWA provides the National Pollutant Discharge Elimination System (NPDES) permit program for pollutants discharged from a “point source”—defined as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel [etc.] from which pollutants are or may be discharged.” Litigation by the Northwest Environmental Defense Center (NEDC) challenged the longstanding U.S. Environmental Protection Agency (EPA) position that most silvicultural activities, including forest roads, are nonpoint sources and thus exempt from NPDES permit requirements. Click here to read more.
The Coal War Rages On
By Samuel Johnson
While North Dakota and Minnesota enjoy many cultural similarities and are generally amicable neighbors, the fight over clean and renewable energy—particularly the burning of lignite coal—is increasingly becoming a source of friction between the two states. See generally Patrick Zomer, The Carbon Border War: Minnesota, North Dakota, and the Dormant Commerce Clause, 8 U. St. Thomas. L.J. 60 (2010). North Dakota has one of the country’s largest reserves of lignite coal, a younger form of coal than bituminous and anthracite coal which, because it has not completely transformed from peat to a mature coal, has a higher sulfur content and, thus, is a greater polluter than other types of coal. Since it is inefficient to transport lignite coal long distances, it is commonly burned close to the mine, usually as a source of fuel to generate electricity. Click here to read more.
Goodhue Wind Project Update
By Samuel Johnson
In the continuing saga of the Goodhue Wind Project, the Court of Appeals handed the developers a significant victory on June 25, when they upheld the decision of the Minnesota Public Utilities Commission (MEPC) to disregard Goodhue County’s setback requirements. In re AWA Goodhue Wind, LLC, No. A11-2229, 2012 WL 2369004 (Minn. Ct. App. June 25, 2012). Goodhue County had passed an ordinance requiring a 10 rotor-diameter (RD) setback distance. The rotors in question have a diameter of 271 feet. This would mean a setback distance of 2,710 feet, or just over half-a-mile. This setback distance far exceeds the 6-RD setback distance traditionally required of developers. Click here to read more.