MEPA at 36: Perspectives on Minnesota's Little NEPA

• Date: 01 July 2009

7-2009 nEwS & anaLYSiS 39 ELR 10663

MEPA at 36: Perspectives on

Minnesota’s Little NEPA

by Kevin Reuther

Kevin Reuther is Legal Director at the Minnesota Center for Environmental Advocacy.

I. Background and Context

Two Minnesota statutes, both adopted in the early 1970s,

were intended to establish bedrock protections for Minne-

sota’s environment. e rst is the Minnesota Environmen-

tal Policy Act (MEPA) of 1973,1 considered the state’s little

NEPA [in reference to the National Environmental Policy

Act2]. e second is the Minnesota Environmental Rights

Act (MERA),3 which establishes a general claim for environ-

mental degradation.

MEPA, like NEPA, mandates an environmental review

prior to projects that signicantly aect the environment:

“Where there is a potential for signicant environmental

eects resulting f rom any major governmental action, the

action shall be preceded by a detailed environmental impact

statement [EIS] prepared by the responsible governmental

unit.”4 e procedures established in MEPA and its imple-

menting rules are similar to those required under NEPA.5

Unlike NEPA, MEPA also contains a substantive stan-

dard. e statute provides that no state action shall be

allowed, nor permit granted for private action, that will

result in the “pollution, impairment, or destruction” of the

state’s natural resources, so long a s a “feasible a nd prudent”

alternative to the proposed action exists.6 “Economic consid-

erations alone shall not justify such conduct.”7 e intent of

MEPA was to couple the substantive standard with the envi-

ronmental impact statement (EIS) mechanism to determine

and explore feasible and prudent alternatives.8

e prohibition against “pollution, impairment, or

destruction” appears in MERA as well. Pollution, impair-

ment, or destruction is dened as any conduct that violates,

or is likely to violate, standards or limits set by rule or permit

1. M. S. §116D.

2. 42 U.S.C. §§4321-4370f, ELR S. NEPA §§2-209.

3. M. S. §116B.

4. M. S. §116D.04, subd. 2a.

5. See generally M. S. §116D.04.

6. M. S. §116D.04, subd. 6.

7. Id.

8. See In re Winona County Municipal Solid Waste, 442 N.W.2d 344 (Minn.

App. 1989) (holding that a supplemental EIS was needed because this was

“substantial new information ... that signicantly aects the availability of

prudent and feasible alternatives”).

or “any conduct which materially adversely aects or is likely

to materially adversely aect the environment.”9 A family

farmer or family-owned farm corporation is not a “person”

for purposes of MERA.10 MERA was modeled after the

Michigan Environmental Rights Act, and the Minnesota

courts have looked to Michigan for guidance in interpreting

its provisions.11

In theory, MEPA (and MER A) should ensure that Min-

nesota’s environment is well protected from degrading

impacts. It calls for ample NEPA-like procedures requiring

environmental studies to ma ke projects better and also pro-

vides for enforcement, where necessary, to ensure the choice

of an environmentally favorable alternative. As the statute

has been interpreted and evolved in practice, however, it has

been sapped of some of its initial strength.

II. An Unfulf‌illed Promise

It didn’t take long for MEPA to become less than what its

champions had hoped for. By the late 1980s, those who had

fought hard to get MEPA (and MER A) passed in the Min-

nesota Legislature were lamenting the unfullled promises

of the statutes in practice.12

9. M. S. §116B.02, subd 5. e Minnesota Supreme Court has provided

ve factors to consider in determining whether conduct “materially adversely

aects” the environment: (1) e quality and severity of any adverse eects of

the proposed action on the natural resources aected; (2) Whether the natural

resources aected are rare, unique, endangered, or have historical signicance;

(3) Whether the proposed action will have long-term adverse eects on natural

resources, including whether the aected resources are easily replaceable (for

example, by replanting trees or restocking sh); (4) Whether the proposed ac-

tion will have signicant consequential eects on other natural resources (for

example, whether wildlife will be lost if its habitat is impaired or destroyed);

(5) Whether the aected natural resources are signicantly increasing or de-

creasing in number, considering the direct and consequential impact of the

proposed action. e court “emphasize[d] that these factors are not exclusive

and that each factor need not be met in order to nd a materially adverse ef-

fect. Rather, the factors are intended as a exible guideline for consideration as

may be appropriate based on the facts of each case.” State by Schaller v. County

of Blue Earth, 563 N.W.2d 260, 267 (Minn. 1997).

10. M. S. §116B.02, subd. 2.

11. In the Matter of University of Minnesota Air Permit, 566 N.W.2d 98, 105

(Minn. App. 1997).

12. See John H. Herman & Charles K. Dayton, Environmental Review: An Unful-

lled Promise, B  B.  M., (July 1990); R E  K

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