How the frac-sand industry escaped environmental review
By Peter L. Gove
Lost in the uproar over silica sand mining is a serious threat to Minnesota’s environmental-review procedures with potentially far-reaching implications. And it appears no one in state government or our congressional delegation is taking this threat seriously.
In the historic Mississippi River town of Wabasha, a clever and aggressive Canadian sand company found a way to flout Minnesota’s environmental-review measures. They leased land from a railroad and then claimed exemption from state and local review, using the railroad’s federal right of pre-emption over state and local zoning laws. This longstanding privilege basically says that state and local governments cannot restrict a railroad’s right to operate in interstate commerce.
In a cautionary tale for many communities in our region, this federal exemption was honored in Wabasha. And, the same could happen anywhere a railroad has a large enough rail yard to accommodate tenants and their operations. In this case, a local government was overwhelmed by a well-funded private company.
As background, in December 2012, a Wabasha citizens group asked the Planning Commission to require an Environmental Assessment before granting a permit for a Canadian company’s trans loading (from truck to rail car) facility that would bring 500 sand-hauling truck trips daily through this small river town from Wisconsin over a Mississippi River bridge. These residents felt there was too little information about safety and environmental risks to their community without an assessment to inform the conditions placed on a permit.
That request was denied at the advice of the Wabasha city attorney when the applicant claimed exemption from environmental review under the Federal Surface Transportation Act.
Nothing dissuaded the Wabasha City Council. Not case law that federal pre-emption applies “only to state laws with respect to regulation of railroad transportation,” and not to a lessee of railroad property. Not the Minnesota Environmental Quality Board’s suggestion that an Environmental Assessment was in order. And, the city chose not to request a clarifying opinion from the attorney general. One can only conclude these officials were intimidated by the threat of litigation by project sponsors.
In the end, the Wabasha frac-sand loading facility was approved. Limited permit conditions were added, but without the rigorous analysis of an Environmental Assessment. And apparently justified because a company completely separate from the Canadian Pacific claimed that railroad’s right of federal pre-emption from state and local laws and regulations.
It is hard to imagine that Congress intended the Surface Transportation Act to exempt from state oversight a company that is simply leasing railroad property and essentially has nothing to do with the unencumbered operation of a railroad.
Frac-sand mining is rapidly expanding in bluff country in southeastern Minnesota and western Wisconsin with minimal consideration of long-term impacts to this unique landscape. This mushrooming industry is essentially unregulated in Wisconsin, with the DNR overwhelmed with monitoring over 100 facilities. In Minnesota, the Legislature recently approved some protections for sensitive trout streams. Given the opposition of the frac-sand industry and its allies in organized labor, more comprehensive legislation was defeated despite the support of Gov. Mark Dayton and the able leadership of Sen. Matt Schmitt and Rep. Rick Hansen.
Again, this is only one industry. The Wabasha pre-emption precedent could be used in other communities perhaps for a fertilizer plant or metal shredder.
Unless the governor, attorney general, legislators or members of our congressional delegation act to clarify the appropriate use of federal pre-emption, what happened in Wabasha can happen in any Minnesota community with a rail line.
Perhaps one step is a field hearing in Wabasha by members of the House Environment and Natural Resources Committee and Senate Environment and Energy Committee to examine this pre-emption case as well as a broader examination of the likely public-health, transportation and property-value impacts of sand mining, including in Wisconsin’s Trempealeau County, ground zero of our neighboring state’s frac-sand industry.
Peter L. Gove, a retired St. Jude Medical, Inc. executive, lives in St. Paul and has worked in government and as a citizen to protect land and water resources for more than four decades. He chairs The Trust for Public Land’s Minnesota Advisory Board, founded Friends of the Mississippi River and is the past chair of the St. Croix River Association.
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